Judicial Duty to Decide and Structure Post‑Termination Visitation in West Virginia Abuse and Neglect Cases: Commentary on In re D.D.-1, D.D.-2, D.D.-3, D.D.-4, and D.K.

Judicial Duty to Decide and Structure Post‑Termination Visitation in West Virginia Abuse and Neglect Cases

Commentary on In re D.D.-1, D.D.-2, D.D.-3, D.D.-4, and D.K., No. 24-584 (W. Va. Nov. 4, 2025)

I. Introduction

This memorandum decision of the Supreme Court of Appeals of West Virginia in In re D.D.-1, D.D.-2, D.D.-3, D.D.-4, and D.K. addresses a multi‑child abuse and neglect case arising from Ohio County. Petitioner Mother K.K. challenged the circuit court’s disposition order terminating her parental, custodial, and guardianship rights to five children and leaving post‑termination visitation to the non‑abusing father’s discretion.

The decision is significant in two principal ways:

  1. It reaffirms how West Virginia courts should handle abuse and neglect proceedings involving a parent with low cognitive functioning and serious mental illness, including the scope of the Department of Human Services’ (DHS) and the court’s obligations to provide and evaluate intensive services.
  2. More importantly for future practice, it clarifies and reinforces that circuit courts themselves must (a) decide whether post‑termination visitation or “continued association” with an abusing parent is in the child’s best interests and (b) if such visitation is appropriate, formulate a concrete visitation plan. Courts may not simply “leave it to the other parent’s discretion” or issue open‑ended language that “does not preclude” contact.

The Supreme Court ultimately:

  • Affirmed the termination of the mother’s parental, custodial, and guardianship rights;
  • Affirmed the denial of a post‑dispositional improvement period;
  • Rejected the mother’s arguments that her low cognitive functioning and the children’s wishes required a different outcome; but
  • Vacated and remanded the post‑termination visitation portion of the dispositional order, directing the circuit court to conduct a best‑interests analysis for all children (including D.K.) and, if visitation is appropriate, to adopt a specific visitation plan.

II. Summary of the Opinion

A. Parties and Procedural Posture

The case involves:

  • Petitioner Mother K.K., diagnosed with bipolar disorder, unspecified personality disorder, and borderline intellectual functioning;
  • Five children: D.D.-1, D.D.-2, D.D.-3, D.D.-4, and D.K.;
  • The West Virginia Department of Human Services (DHS) as petitioner in the underlying abuse and neglect proceeding;
  • The non‑abusing father of four of the children (planned reunification placement);
  • The father of D.K., whose parental rights were terminated, with adoption planned for D.K.;
  • A guardian ad litem for the children.

The circuit court:

  • Adjudicated the mother as an abusing and neglectful parent following her stipulation relating to untreated mental health conditions;
  • Granted her a post‑adjudicatory improvement period with extended services;
  • Ultimately terminated her parental, custodial, and guardianship rights after finding no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected and that termination was in the children’s best interests; and
  • Inelegantly stated that its order “does not preclude” post‑termination visitation with four of the children, so long as supervised by the father or his designee, and said nothing about visitation with D.K.

On appeal, Mother K.K. challenged:

  1. The denial of a post‑dispositional improvement period;
  2. The court’s alleged failure to adequately consider her low cognitive functioning;
  3. The findings supporting termination under West Virginia Code § 49‑4‑604; and
  4. The delegation of post‑termination visitation decisions to the father and omission of any provision for D.K.

B. Holdings

The Supreme Court held:

  1. Low Cognitive Functioning & Services: The circuit court complied with the requirements for parents with intellectual or cognitive limitations as set out in In re Billy Joe M. and In re Maranda T.. The mother received psychological and psychiatric evaluations, a guardian ad litem, an improvement period, an extension, and four extra months of services. Her ongoing denial of abuse and neglect rendered further services futile.
  2. No Reasonable Likelihood & Termination: The evidence (failure to engage in services, refusal to acknowledge problems, poor prognosis for improved parenting) supported the finding under West Virginia Code § 49‑4‑604(d)(3) that there was no reasonable likelihood that the conditions could be substantially corrected in the near future. Termination under § 49‑4‑604(c)(6) was therefore proper, and the circuit court was not required to adopt a less restrictive alternative.
  3. Post‑Dispositional Improvement Period: Because the mother had already been given a post‑adjudicatory improvement period and showed no “substantial change in circumstances” as required by § 49‑4‑610(3)(D), the denial of a further improvement period was proper.
  4. Children’s Wishes: Although the children preferred that the mother’s rights remain intact, the circuit court permissibly concluded that termination was in their best interests. Children’s preferences are relevant but not controlling.
  5. Post‑Termination Visitation: The circuit court erred by:
    • Leaving post‑termination visitation to the father’s discretion;
    • Merely stating that the order “does not preclude” supervised visitation;
    • Failing to conduct and articulate a best‑interests analysis under In re Christina L. and In re Jonathan G.; and
    • Failing to address visitation with D.K. at all.
    Consequently, the Supreme Court vacated the visitation portion of the order and remanded for the circuit court to determine whether continued association between each child and the mother is in the children’s best interests and, if so, to adopt a defined visitation plan.

III. Detailed Analysis

A. Factual and Procedural Background

1. Underlying CPS Concerns

The DHS petition, filed in October 2022, alleged a pattern of serious parental deficits:

  • Repeated CPS involvement in New York and prior referrals in West Virginia;
  • A September 2022 traffic stop: mother driving on a suspended license with three‑year‑old D.K. unrestrained in the front seat;
  • Educational neglect: two thirteen‑year‑olds (D.D.-1 and D.D.-2) with numerous unexcused absences; untreated illness for D.D.-1 affecting swallowing; untreated wrist fracture for D.D.-2 lasting roughly three weeks;
  • Failure to manage mental health and substance use: untreated mental illness, drug use, sexualized and inappropriate behavior at school, offering “edibles” to staff;
  • Failure to provide basic care: leaving the children alone on many occasions, inadequate food;
  • Alarming behavior toward CPS: during a home visit, allegedly hanging D.K. partially out of a second‑story window, slamming a child onto a bed, and threatening to kill the CPS worker;
  • D.D.-3’s report that she witnessed the murder of mother’s boyfriend and saw “brains and blood coming out of his head.”

2. Psychological and Psychiatric Evaluations; Appointment of GAL

In March 2023, Dr. Edward Baker performed a parental fitness evaluation, diagnosing:

  • Unspecified personality disorder;
  • Bipolar II disorder; and
  • Possible borderline intellectual functioning.

Given these findings, the circuit court took the relatively uncommon step of appointing a guardian ad litem for the mother, in addition to the separate guardian ad litem for the children. This reflected the court’s concern that her mental health and cognitive functioning might interfere with her ability to participate meaningfully in the proceedings.

Later, in February 2024, psychiatrist Dr. Aliana Abascal evaluated the mother and diagnosed:

  • Bipolar disorder;
  • Cannabis use disorder; and
  • Borderline intellectual functioning.

Dr. Abascal rated the mother’s prognosis as “guarded” and emphasized that meaningful improvement would require psychiatric treatment and adherence to medication, which had helped in the past.

3. Adjudication and Improvement Period

At a May 2023 adjudicatory hearing, the mother stipulated that her untreated or undertreated mental health conditions negatively affected her parenting. The court adjudicated her as an abusing and neglectful parent.

The court then granted a post‑adjudicatory improvement period—a structured opportunity for the mother to correct the conditions—requiring her to:

  • Abstain from drugs;
  • Avoid criminal behavior;
  • Address her mental health needs and comply with all treatment recommendations;
  • Seek or maintain employment; and
  • Communicate appropriately and regularly with parties and service providers.

Over time, concerns arose:

  • Positive cocaine test;
  • Inappropriate statements during visits;
  • Unsupervised contact with the children contrary to the case plan;
  • Confusion and lack of understanding about the case issues and court process, prompting the psychiatric evaluation;
  • Erratic and inappropriate behavior at the Day Report Center;
  • Persistent denial of any abuse or neglect and allegations that CPS was simply racist.

Despite an improvement period, an extension, and additional months of services, the mother’s engagement remained minimal, and she continued to deny any parental deficiencies.

4. Disposition in the Circuit Court

At the June 2024 dispositional hearings, the professionals consistently described the mother as:

  • Erratic, tangential, overly detailed, loud, and grandiose;
  • Lacking insight into her own behavior and its impact on the children;
  • Focused in therapy on her anger at CPS rather than working on her mental health; and
  • Unwilling to follow through with treatment or accept that any issues existed.

Dr. Baker testified that:

  • The mother lacked nurturing skills and understanding of child development;
  • Her IQ testing was not a valid indicator due to her inability to focus; and
  • Her prognosis for improved parenting was poor absent a major change in her attitude toward treatment and insight.

The circuit court found:

  • The mother failed to comply with the improvement period;
  • She had not substantially corrected the issues that led to the abuse and neglect;
  • She showed “no actual progress or improvement” despite extensive and prolonged services; and
  • There was no reasonable likelihood that the conditions could be substantially corrected in the near future.

The court further found that termination was in the children’s best interests, in part because the mother had a history of fleeing with the children and could not be trusted not to interfere with their placements—especially the reunification plan with the non‑abusing father.

On visitation, the court’s order:

  • Did not preclude the possibility of supervised visitation between the mother and D.D.-1 through D.D.-4, but only “so long as they are supervised by [the father] or an agency or individual he designates”; and
  • Failed to mention any visitation for D.K.

B. Precedents and Statutes Cited

1. Standard of Review – In re Cecil T.

The Court began with the now‑standard formulation from In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), syllabus point 1:

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the circuit court’s findings of fact for clear error and its conclusions of law de novo.

Thus the Supreme Court defers to factual findings unless “clearly erroneous” but freely reviews the application of law and statutory interpretation.

2. Parents with Intellectual or Cognitive Limitations – Billy Joe M. and Maranda T.

The mother argued that the circuit court failed to consider her low cognitive function. The Court responded by citing:

  • In re Billy Joe M., 206 W. Va. 1, 521 S.E.2d 173 (1999); and
  • In re Maranda T., 223 W. Va. 512, 678 S.E.2d 18 (2009), syllabus point 4, which quotes Billy Joe M..

The controlling principle:

“Where allegations of neglect are made against parents based on intellectual incapacity of such parent(s) and their consequent inability to adequately care for their children, termination of rights should occur only after the social services system makes a thorough effort to determine whether the parent(s) can adequately care for the children with intensive long-term assistance. In such case, however, the determination of whether the parents can function with such assistance should be made as soon as possible in order to maximize the child(ren)’s chances for a permanent placement.”

The Supreme Court found that the circuit court and DHS complied with this mandate:

  • They obtained psychological and psychiatric evaluations;
  • The court appointed a guardian ad litem for the mother;
  • The mother received an improvement period, an extension, and extra months of services;
  • The court made its determination within a timeframe aimed at promoting permanence for the children.

3. The “Acknowledgment” Requirement – Timber M. and Charity H.

The Court again relied on a principle frequently cited in abuse and neglect cases: parental problems cannot be remedied if the parent refuses to acknowledge them. From In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013), quoting In re Charity H., 215 W. Va. 208, 217, 599 S.E.2d 631, 640 (2004):

“In order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem . . . results in making the problem untreatable and in making an improvement period an exercise in futility at the child[ren]’s expense.”

This line of authority is central to the Court’s reasoning: the mother’s consistent denial that she ever abused or neglected her children meant that no amount of services could realistically bring about a safe reunification.

4. Preservation and Case Plan Challenges – Noble v. DMV

The mother argued that DHS failed to offer a sufficient case plan to determine whether she could achieve reunification. The Court invoked Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 679 S.E.2d 650 (2009), for the general rule that nonjurisdictional issues not raised below will not be considered on appeal.

Because the mother did not object to the terms of her improvement period or case plan in the circuit court, the Supreme Court deemed the argument waived.

5. Statutory Ground: No Reasonable Likelihood – W. Va. Code § 49‑4‑604(d)(3)

The mother asserted she did not fall within § 49‑4‑604(d)’s enumerated circumstances where “no reasonable likelihood” of correction exists. The Court disagreed, focusing on subsection (d)(3):

There is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when “the abusing adult or adults have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child.”

Given extensive evidence that the mother failed to follow through with services and refused to acknowledge and address her problems, the Court held that the statute was satisfied.

6. Less Restrictive Alternatives – In re R.J.M.

The mother insisted that a less restrictive alternative (such as continued legal relationship with the children but out‑of‑home placement) was required. The Court cited syllabus point 2 of In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980):

The court is not obligated to exercise less restrictive alternatives “when it is found that there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.”

Having affirmed the “no reasonable likelihood” finding under § 49‑4‑604(d)(3), the Court held that the circuit court was not required to attempt a less restrictive disposition under § 49‑4‑604(c)(5).

7. Improvement Periods – § 49‑4‑610(3)(D) and In re K.L.

Regarding the requested post‑dispositional improvement period, the Court pointed to West Virginia Code § 49‑4‑610(3)(D), which conditions a second improvement period on a “substantial change in circumstances” and a showing that the parent is likely to fully participate.

The Court further cited In re K.L., 247 W. Va. 657, 885 S.E.2d 595 (2022), emphasizing that a parent’s failure to participate in or complete an improvement period is a statutorily recognized ground supporting termination. Termination need not be based solely on new misconduct; failure to use the chance already given is itself highly probative.

8. Child’s Wishes vs. Best Interests – § 49‑4‑604(c)(6)(C) and In re J.A.

The mother argued that the court ignored the children’s preference that her rights not be terminated. The Supreme Court noted:

  • The statute, § 49‑4‑604(c)(6)(C), requires the circuit court to give “consideration” to the child’s wishes where appropriate; and
  • In re J.A., 242 W. Va. 226, 833 S.E.2d 487 (2019), clarifies that a child’s preference is a factor, not a mandate; the court must still decide on the basis of the child’s best interests.

Because the circuit court expressly acknowledged the children’s wishes but nonetheless determined that their best interests required termination, the Supreme Court found no error.

9. Post‑Termination Visitation – Christina L., Jonathan G., K.S., and Edward B.

The error in the visitation disposition is grounded in three key authorities:

  • In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995), syllabus point 5, which holds that even when rights are terminated, the circuit court may consider post‑termination visitation if:
    • There is a close emotional bond;
    • The child (if mature enough) expresses a desire for contact; and
    • Evidence shows such contact would not be detrimental and would be in the child’s best interests.
  • In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996), syllabus point 10, which reiterates and applies Christina L., emphasizing the court’s duty to consider these factors in “appropriate cases.”
  • In re K.S., 246 W. Va. 517, 874 S.E.2d 319 (2022), where the Supreme Court reversed a visitation provision that left post‑termination contact entirely to the father’s discretion without a proper judicial determination or plan. The Court held that when post‑termination visitation is found appropriate, “a proper visitation plan must be formulated.”
  • In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001), syllabus point 5, instructing that when the process established by child abuse and neglect rules and statutes has been “substantially disregarded or frustrated,” the case must be remanded for compliance.

The Supreme Court here effectively applied K.S. to hold that:

  • The circuit court cannot simply leave visitation “to the father’s discretion” or say that its order “does not preclude” visitation;
  • The court must explicitly determine whether continued association is in each child’s best interests under Christina L. and Jonathan G.; and
  • If visitation is appropriate, a definite visitation plan must be included in the order.

Additionally, the Court noted that it has provisionally adopted amendments to Rule 15(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, aimed at clarifying the standards for post‑termination visitation. This decision thus bridges existing case law with the emerging rule‑based framework.

C. The Court’s Legal Reasoning

1. Low Cognitive Functioning and Adequacy of Services

The mother’s central argument was that, due to her borderline intellectual functioning and mental health conditions, the circuit court should have been more accommodating and should not have treated her lack of progress as a failure.

The Supreme Court rejected this argument on two grounds:

  1. Compliance with the “thorough effort” requirement. Under Maranda T. and Billy Joe M., DHS and the court must make a thorough effort to determine whether a cognitively limited parent can safely parent with intensive, long‑term assistance. The record showed:
    • Multiple professional evaluations (psychological and psychiatric);
    • Appointment of a guardian ad litem for the mother;
    • Granting an improvement period, extending it, and providing additional months of services beyond the statutory framework; and
    • Ongoing accommodations in understanding and participation.
    The Court characterized these combined efforts as consistent with the “thorough effort” requirement.
  2. Futility due to lack of acknowledgment. Despite this extensive support, the mother persisted in denying any abuse or neglect. The Court viewed this through the lens of Timber M. and Charity H.: without acknowledgment of the problem, improvement periods are futile. The mother’s cognitive limitations did not excuse the complete failure to engage meaningfully with services or to accept basic responsibility.

The Court thus concluded that even more intensive or longer‑term efforts were not realistically going to change the outcome, particularly given the necessity of timely permanency for the children.

2. Finding of “No Reasonable Likelihood” and Termination

The Court’s application of West Virginia Code § 49‑4‑604(d)(3) was straightforward: the mother “did not respond to or follow through with rehabilitative efforts,” including:

  • Failure to fully cooperate with mental health treatment or medication;
  • Failure to secure or maintain employment as required;
  • Continued inappropriate behaviors during visits and with service providers; and
  • Insistence that she did nothing wrong despite expert evaluations and repeated warnings.

On these facts, coupled with professional testimony about poor prognosis and lack of insight, the Court found the statutory “no reasonable likelihood” standard amply met.

Once that finding was in place, termination under § 49‑4‑604(c)(6) follows if it is also in the children’s best interests. Here, the best‑interests determination carried additional weight because:

  • The children needed stability and permanency;
  • Four of them had a viable reunification path with a non‑abusing father;
  • There was credible concern that the mother might attempt to flee again if allowed ongoing legal authority; and
  • She showed no movement toward safe parenting over a substantial period.

3. Denial of a Post‑Dispositional Improvement Period

A post‑dispositional improvement period is not automatic, particularly for a parent who has already had a post‑adjudicatory improvement period. Under § 49‑4‑610(3)(D), the parent must demonstrate:

  • A substantial change in circumstances since the last improvement period; and
  • That she is now likely to fully participate.

The circuit court found “no actual progress or improvement” over the entire period of services. The mother remained in denial and had not meaningfully engaged in therapy or psychiatric care. Therefore, there was no substantial change and no reason to believe that a further improvement period would be anything other than another delay of permanency.

4. Children’s Preferences and Best Interests

The Court recognized that the children expressed a desire that the mother’s rights not be terminated. Under § 49‑4‑604(c)(6)(C) and In re J.A., such preferences must be “given consideration,” but they do not control the outcome.

Here, the circuit court:

  • Explicitly noted the children’s wishes;
  • Balanced those wishes against safety, stability, and the mother’s ongoing deficits; and
  • Concluded that termination was in their best interests.

The Supreme Court affirmed that analysis, underscoring that a child’s loyalty or desire to maintain a bond cannot override clear evidence of ongoing risk and unremedied conditions.

5. The Core Error: Post‑Termination Visitation Delegated to Father

The only reversible error concerned how the circuit court handled post‑termination visitation. The circuit court:

  • Used negative phrasing: the order “does not preclude” visitation;
  • Conditioned any contact on supervision by the father or a designee; and
  • Articulated no best‑interests reasoning and set no concrete schedule or framework.

This approach effectively outsourced the core judicial function to the non‑abusing parent. The Supreme Court found this inconsistent with Christina L., Jonathan G., and especially K.S.:

  • The circuit court must independently determine whether continued contact is in each child’s best interests;
  • It must consider the emotional bond, the child’s wishes, and potential detriment; and
  • If it finds visitation appropriate, it must define the parameters of such visitation (frequency, supervision, conditions, etc.).

Moreover, the circuit court did not address visitation for D.K. at all, even though his father’s rights were also terminated and adoption was the plan. The Supreme Court held that the same analysis of continued association should apply to D.K. and that ignoring him in the visitation analysis was a procedural defect requiring remand under Edward B..

On remand, the circuit court must:

  1. Consider whether continuing association between each child (including D.K.) and the mother is in that child’s best interests; and
  2. If so, formulate a visitation plan specifying when and under what conditions contact can occur.

The Court also noted that it has provisionally adopted amendments to Rule 15(b) to “more clearly articulate and adopt appropriate standards for consideration of post‑termination visitation,” signaling a tightening of procedural expectations in this area.

IV. Complex Concepts Simplified

1. “Improvement Period”

An improvement period is a court‑ordered window of time during which a parent is given structured services and requirements (case plan) to correct the conditions that led to abuse or neglect. It is:

  • Not automatic;
  • Conditioned on a showing that the parent is likely to fully participate;
  • Subject to extension only under statutory and case‑law limits; and
  • Evaluated at disposition to determine whether sufficient progress has been made.

In this case, the mother was given one such period, extended, plus additional time, but she did not demonstrate meaningful progress.

2. “No Reasonable Likelihood the Conditions Can Be Substantially Corrected”

This statutory phrase (in § 49‑4‑604(d)) is critical. It does not mean absolute impossibility; instead, it asks whether, within a reasonable period that is compatible with the child’s need for permanency, the parent is likely to make sufficient changes to safely resume custody.

Subsection (d)(3) specifically covers situations where the parent does not respond to or follow through with a reasonable family case plan or services. That was the situation here.

3. “Post‑Termination Visitation” or “Continued Association”

When a court terminates parental rights, it severs the legal parent‑child relationship. Yet, in some cases, the court may find that it is in the child’s best interests to continue some form of contact with the former parent (for example, periodic supervised visits).

West Virginia case law requires that:

  • The circuit court—not another party—decides if such contact is in the child’s best interests;
  • The court considers the emotional bond, the child’s wishes (if mature), and the potential for harm or benefit; and
  • If contact is allowed, a concrete visitation plan must be set, rather than leaving it to private discretion.

4. “Guardian ad Litem” (GAL)

A guardian ad litem is an attorney appointed to represent the best interests of a child in abuse and neglect proceedings. Here, in an unusual but warranted move, the court also appointed a GAL for the mother because of her mental health and cognitive difficulties, ensuring she had additional support in understanding and participating in the case.

5. “Borderline Intellectual Functioning”

“Borderline intellectual functioning” is a clinical term indicating intellectual abilities that are below average but not low enough to qualify as intellectual disability. Legally, it triggers concerns about:

  • The person’s ability to understand court proceedings;
  • The person’s capacity to benefit from services;
  • The need for tailored, often more intensive support from DHS and the court.

However, it does not exempt a parent from accountability; rather, it shapes the kind and duration of services that must be tried before termination.

V. Impact and Implications

A. For Trial Courts

  1. Documenting “Thorough Efforts” with Cognitively Limited Parents.
    This decision shows the Supreme Court will look at the full record of services provided when reviewing termination of a parent with low cognitive functioning:
    • Were psychological and psychiatric evaluations obtained?
    • Was a GAL appointed if participation capacity was in doubt?
    • Were improvement periods granted and appropriately extended?
    • Were services tailored and sufficiently intensive?
    Circuit courts should make explicit findings on these questions to withstand appellate review.
  2. Strict Approach to “Acknowledgment” and Futility.
    The Court continues to emphasize that unyielding denial of problems makes conditions “untreatable.” Judges should clearly delineate when an improvement period has become an “exercise in futility” under Timber M. and related cases.
  3. Clear Best‑Interests Findings.
    The decision reaffirms that best‑interests analysis must be explicit, particularly where:
    • Children express a preference contrary to the outcome; or
    • The court chooses termination over less restrictive alternatives.
  4. Non‑Delegable Duty on Post‑Termination Visitation.
    The most concrete procedural impact is the reaffirmation that:
    • The circuit court must itself decide whether continued association with the former parent is in each child’s best interests;
    • It must not simply allow the custodial parent (here, the non‑abusing father) to decide whether and when visits happen; and
    • If visitation is allowed, a specific visitation plan must be included in the order.
    This reinforces K.S. and should change drafting practices for dispositional orders.

B. For Practitioners (Parents’ Counsel, GALs, and DHS Lawyers)

  1. Preservation of Case Plan Objections.
    The Court refused to consider arguments about the alleged inadequacy of the case plan because they were not raised below. Counsel must:
    • Review case plans carefully;
    • Object on the record if the plan is not tailored to the client’s needs or cognitive abilities; and
    • Propose specific modifications.
  2. Client Counseling About Acknowledgment.
    Lawyers representing parents must communicate that refusal to acknowledge problems—including drug use, mental health, or safety incidents—can doom an improvement period. From a litigation standpoint, strategic partial acknowledgment and credible engagement in treatment often materially alter outcomes.
  3. GALs Must Address Post‑Termination Visitation Explicitly.
    GALs for children and, where applicable, for impaired parents, should:
    • Develop a clear position on whether continued association is in the child’s best interests;
    • Present evidence about emotional bonds, the child’s wishes, and potential benefit or harm; and
    • Request a specific visitation plan where appropriate, not vague “as agreed” language.

C. For Child Welfare Agencies and Policy

  1. Balancing Intensive Services with Timely Permanency.
    The case illustrates that while agencies must provide intensive, tailored services to parents with cognitive limitations, there is a clear endpoint: where prolonged services yield no real progress and the parent denies all issues, the law supports moving to termination to protect the child’s need for permanency.
  2. Consistency with Emerging Rule‑Based Standards.
    The reference to provisional amendments to Rule 15(b) indicates the Court’s ongoing effort to codify and standardize practice around post‑termination visitation. Agencies and courts should anticipate more formalized standards and ensure that their practices (and orders) are consistent with Christina L., Jonathan G., and K.S. as interpreted here.

D. For Future Litigation on Post‑Termination Visitation

The decision reinforces several practical points about post‑termination visitation:

  • Orders that merely say contact “is not precluded,” or “as supervised by the custodial parent or his/her designee,” are vulnerable to being vacated.
  • Each child must be individually considered—even if permanency plans differ (e.g., reunification for some, adoption for another).
  • The Court expects clear, reasoned findings on:
    • Existence and strength of the emotional bond;
    • The child’s wishes (where mature enough); and
    • Evidence regarding potential benefits and detriments.
  • If visitation is found appropriate, frequency, duration, location, supervision, and conditions (e.g., sobriety, therapeutic setting) should be spelled out.

VI. Conclusion

In re D.D.-1, D.D.-2, D.D.-3, D.D.-4, and D.K. is a memorandum decision, but it reinforces and clarifies important principles in West Virginia abuse and neglect jurisprudence.

On the one hand, it confirms that when dealing with a parent who has low cognitive functioning and serious mental illness, DHS and the courts must make thorough, tailored efforts—including evaluations, guardians ad litem, and extended services—to assess the parent’s capacity to safely care for the children with support. Yet, if the parent refuses to acknowledge any problem and fails to engage with services, the law does not require endless attempts; termination can be both lawful and necessary for the children’s permanency.

On the other hand, the decision has a sharper, system‑wide impact on post‑termination visitation practice. Building on Christina L., Jonathan G., and K.S., the Court makes clear that:

  • The circuit court—not the custodial parent—must decide whether continued association with a terminated parent is in the child’s best interests; and
  • Where visitation is appropriate, the court must adopt a concrete visitation plan rather than vague or discretionary language.

By affirming termination but vacating and remanding the visitation component, the Supreme Court both upholds the core protective function of the abuse and neglect system and insists on procedural rigor and judicial accountability in decisions affecting children’s ongoing relationships with former parents.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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