Missed Special-Needs Medical Care and Supervision Lapses as Neglect—and Termination—Despite Partial Improvement-Period Compliance

Introduction

In re B.H. and R.H. (W. Va. Sup. Ct. App. July 28, 2026) is a memorandum decision affirming the Circuit Court of Kanawha County’s termination of petitioner mother D.M.’s parental rights to two young children with extensive, “extraordinary” special needs. The appeal followed an unusually protracted abuse-and-neglect case that had already returned to the Supreme Court once before in In re B.H., Nos. 22-678 and 22-680, 2023 WL 7439170 (W. Va. Nov. 9, 2023), where the Court vacated a prior disposition and remanded due to factual inconsistencies and termination on a basis not tied to adjudication.

On remand, the circuit court granted a post-dispositional improvement period. The central issues on this second appeal were whether (1) the evidence supported a neglect adjudication on the amended petition, (2) the improvement period was mishandled (including whether services were adequate), and (3) termination—rather than a less restrictive alternative—was legally justified.

Summary of the Opinion

The Supreme Court affirmed. It held that the circuit court:

  • properly adjudicated petitioner as a neglecting parent based on clear and convincing evidence of failure to supervise and medical neglect,
  • did not commit reversible error in improvement-period administration where petitioner failed to raise objections or request additional services below (waiver), and
  • properly terminated parental rights under West Virginia Code § 49-4-604(c)(6) because there was no reasonable likelihood the conditions of neglect could be substantially corrected in the near future and termination was necessary for the children’s welfare.

Analysis

Precedents Cited

1) Standard of Review and Appellate Posture

  • Syl. Pt. 1, In re K.S., -- W. Va. --, 930 S.E.2d 400 (2026): The Court applied the familiar abuse-and-neglect review framework—abuse of discretion for dispositional rulings, clear error for factual findings, and de novo review for legal questions—setting a deferential posture toward the circuit court’s fact-intensive determinations.

2) Burden of Proof, Evidence Required, and “Clear and Convincing”

  • Syl. Pt. 3, In re F.S., 233 W. Va. 538, 759 S.E.2d 769 (2014) (quoting Syl. Pt. 3, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995)): The Court relied on these cases to reject any notion that DHS must present evidence in a particular “manner or mode” to satisfy its burden under West Virginia Code § 49-4-601(i). This undercut petitioner’s claim that the circuit court effectively shifted the burden to her.
  • In re A.M., 243 W. Va. 593, 849 S.E.2d 371 (2020): Cited for the definition of “clear and convincing evidence”—more than a scintilla, less than beyond a reasonable doubt. The Court used this to frame the sufficiency analysis and to conclude the record contained ample proof of neglect.

3) Issue Preservation / Waiver on Appeal

  • Noble v. W. Va. Dep't of Motor Vehicles, 223 W. Va. 818, 679 S.E.2d 650 (2009) (quoting Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999)): The Court used Noble/Shaffer to hold multiple arguments waived because they were not raised in the circuit court—particularly challenges to the case plan’s detail and complaints about adequacy/timeliness of improvement-period services.
  • State v. Kaufman, 227 W. Va. 537, 711 S.E.2d 607 (2011) (quoting United States v. Dunkel, 927 F.2d 955 (7th Cir.1991)): Applied to reject a “passing” due process claim presented without developed argument or authority, reinforcing that undeveloped assertions do not preserve error.

4) Termination Standard and Less Restrictive Alternatives

  • 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. 796, 266 S.E.2d 114 (1980)): These authorities anchored the Court’s rule that termination may occur “without the use of intervening less restrictive alternatives” where there is no reasonable likelihood of correction and termination is necessary for the child’s welfare—mirroring West Virginia Code § 49-4-604(c)(6).

5) “Compliance” Versus Actual Remediation of Parenting Deficits

  • In re Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (1995) (quoting W. Va. Dep't of Human Serv. v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990)): The Court used these precedents to explain why formal compliance (sobriety, employment, class attendance) does not control if the parent has not improved overall parenting capacity—particularly salient here, where the children’s needs required reliable medical/therapy attendance and constant supervision.

Legal Reasoning

1) Neglect Adjudication on the Amended Petition

The Court emphasized statutory grounding: West Virginia Code § 49-4-601(i) requires adjudicatory findings “upon conditions existing at the time of the filing of the petition” proven by clear and convincing evidence. It then tied the evidence to the neglect definition in West Virginia Code § 49-1-201, focusing on “necessary… supervision [and] medical care.”

The adjudication was supported by evidence that petitioner repeatedly failed to:

  • transport the medically fragile children to multiple weekly appointments (with foster parents taking the children instead),
  • maintain basic hygiene care during visits (returning B.H. in saturated/soiled diapers leaking urine/feces), and
  • supervise adequately, with multiple absconding incidents and other safety lapses during visitation.

Importantly, the circuit court considered prior testimony without objection at the adjudicatory hearing on the amended petition; the Supreme Court did not find error in that procedure on the record presented.

2) Improvement Period Complaints Were Not Preserved

Petitioner argued on appeal that the record was “silent” as to timely/adequate services and that specialized resources were not provided for the children’s needs. The Court’s response was procedural and factual:

  • procedurally, petitioner did not object to improvement-period terms or request additional services below (waiver under Noble),
  • factually, services were provided (parenting/adult life skills, drug screens, visitation), and the court ordered attendance/transport to appointments to address special-needs caregiving.

The Court also rejected claims that foster parents obstructed visitation, noting that visitation timing was agreed to begin after therapy started and the record showed cooperation thereafter.

3) Termination Was Supported by “No Reasonable Likelihood” and Best Interests

Applying West Virginia Code § 49-4-604(c)(6) and § 49-4-604(d)(3), the Court held termination was warranted because petitioner demonstrated “inadequate capacity” to solve neglect problems “on their own or with help,” including failure to “follow through” with the case plan’s most critical elements. The Court treated missed appointments and supervision failures not as “generalized concerns,” but as concrete, repeated, and harmful in the context of children requiring strict routines and frequent therapies.

The Court also credited evidence that the children’s behaviors worsened when unsupervised visitation increased and improved after visitation ceased, supporting the circuit court’s best-interests findings and the necessity of termination.

Impact

  • Special-needs parenting capacity as a dispositive lens: The decision signals that in cases involving medically fragile or developmentally complex children, courts will treat consistent appointment attendance, hygiene competence, and close supervision as core parental capacities—not peripheral “case plan” items.
  • Partial compliance is not a safe harbor: Sobriety and class attendance may be insufficient if the parent cannot execute the daily, logistical, and safety demands of the child’s actual needs (reinforced through In re Jonathan Michael D. / Peggy F.).
  • Preservation doctrine remains outcome-determinative: Arguments about case plan inadequacy, service deficiencies, and even due process will be lost if not raised and developed in the circuit court.
  • Termination without lesser alternatives remains robust: By straightforwardly applying § 49-4-604(c)(6) and In re Kristin Y., the Court reinforces that lesser alternatives are not required where the statutory findings are met, even after extended proceedings.

Complex Concepts Simplified

  • Adjudication vs. Disposition: Adjudication decides whether a parent abused/neglected the child. Disposition decides what happens next (return home, guardianship, termination, etc.).
  • Improvement period (including post-dispositional): A court-supervised chance to correct problems through services and compliance. A post-dispositional improvement period occurs after an initial disposition has been entered (here, after remand).
  • Clear and convincing evidence: A high civil standard—more than “some evidence,” less than “beyond a reasonable doubt.”
  • Waiver (issue preservation): If a party does not object or raise an issue in the trial court, the appellate court generally will not consider it later.
  • No reasonable likelihood of correction: A statutory conclusion (W. Va. Code § 49-4-604(d)(3)) that the parent lacks capacity to fix the neglect/abuse in the near future, even with help.
  • Less restrictive alternative: Options short of termination (e.g., guardianship). West Virginia law permits skipping these if statutory grounds for termination are met.

Conclusion

In re B.H. and R.H. reinforces a practical rule in West Virginia abuse-and-neglect jurisprudence: when children have extraordinary special needs, repeated failures in supervision, hygiene, and medical/therapy adherence can constitute neglect and justify termination—even where the parent shows partial improvement-period compliance such as sobriety, employment, and attendance at classes. The decision also underscores that appellate relief often turns on preservation: objections to services, case plans, and procedural fairness must be timely raised and developed in the circuit court.