No Case Plan, No Termination: West Virginia High Court Requires an Individualized Family Case Plan for Each Parent Before Disposition

Introduction

In In re L.P., No. 24-74 (W. Va. Mar. 25, 2025), the Supreme Court of Appeals of West Virginia vacated a circuit court’s order terminating the father’s parental rights because the Department of Human Services (DHS) never filed a family case plan pertaining to him. The case arose from a February 2023 abuse and neglect petition alleging that the father, P.P., engaged in extreme domestic violence against the child’s mother, including threats with a firearm, which the child witnessed. The father had previously had his parental rights to other children involuntarily terminated. He appeared for the preliminary hearing but did not appear thereafter. Following adjudication in September 2023, the circuit court held a dispositional hearing in November 2023 and terminated the father’s rights based on noncompliance, his history of extreme domestic violence, and prior terminations.

The key appellate issue was narrow but consequential: whether the circuit court erred by proceeding to disposition without a family case plan addressing the father. DHS conceded that its filed plan focused solely on the mother and “made no reference” to the father. The majority vacated and remanded, holding that the absence of an individualized family case plan is reversible error requiring vacatur, notwithstanding a parent’s nonparticipation or noncompliance. A dissent would have affirmed based on waiver and lack of prejudice.

Summary of the Opinion

Applying a clear-error standard to factual findings and de novo review to legal conclusions (per Syllabus Point 1 of In re Cecil T.), the Court held that DHS’s failure to file a family case plan “in regard to the petitioner” violated West Virginia Code § 49-4-604(a) and § 49-4-408(a), (b). Relying on its recent and longstanding precedents (In re K.L. and In re Desarae M.), the Court reiterated that failure to prepare a family case plan with clear, parent-directed requirements is reversible error. It expressly rejected DHS’s argument that the father’s “almost total noncompliance” rendered a plan unnecessary, emphasizing that statutory requirements must be followed regardless of perceived futility or the parent’s recalcitrance.

Because “the process established by the statutes” was substantially disregarded (per Syllabus Point 3 of In re Emily G., quoting In re Edward B.), the Court vacated the November 30, 2023 dispositional order as to the father and remanded for further proceedings consistent with the statutes and rules. The Court issued its decision as a memorandum opinion under Rule 21(d), finding oral argument unnecessary. The ruling did not disturb any other aspects of the circuit court’s order affecting other respondents or children, and the child’s permanency plan remains placement with the mother, who completed an improvement period.

Analysis

Statutory and Doctrinal Framework

West Virginia’s abuse and neglect scheme delineates a two-stage process: adjudication (whether abuse/neglect occurred) and disposition (what to do about it). After adjudication, DHS must file a family case plan. The governing statutes include:

• West Virginia Code § 49-4-604(a): Requires DHS to file a copy of the case plan following a finding as to whether a child has been abused or neglected.
• West Virginia Code § 49-4-408(a), (b): Sets timelines for filing case plans and prescribes their formulation and content. In essence, the plan must be individualized, time-limited, and include specific tasks, services, objectives, and metrics by which parental progress will be assessed.

Disposition may include terminating parental rights upon findings that there is no reasonable likelihood the conditions of neglect or abuse can be substantially corrected in the near future and that termination is necessary for the child’s welfare. But the case plan is a statutory predicate that shapes the services offered, the parent’s obligations, and the metric for judging whether the parent has achieved sufficient improvement.

Precedents Cited and Their Role

• In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 1): Establishes the standard of review—clear error for factual findings and de novo for legal conclusions—guiding the appellate court’s analysis.
• In re Desarae M., 214 W. Va. 657, 591 S.E.2d 215 (2003): A bedrock case emphasizing that a family case plan is essential. Without it, those assisting the parent lack “distinct goals, methods of achieving such goals, or means by which success will be judged.”
• In re K.L., 247 W. Va. 657, 885 S.E.2d 595 (2022): Reaffirmed Desarae M. and cautioned courts against the “temptation to circumvent” the case plan requirement based on doubts about a parent’s capacity for improvement or the parent’s recalcitrance. K.L. stated plainly that the failure to prepare a family case plan with clear requirements is reversible error.
• In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009) (Syl. Pt. 3), quoting In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001): Provides the remedial framework—vacatur and remand are required where the statutory process has been “substantially disregarded or frustrated.”
• Rule 21(d), W. Va. R. App. P.: Authorizes memorandum decisions in limited circumstances, signaling that this outcome follows directly from settled law without need for oral argument.

Taken together, these authorities supply both the substantive rule (a parent-specific case plan is mandatory; its absence is reversible) and the remedy (vacate and remand when the statutory process is not followed).

The Court’s Legal Reasoning

The majority’s reasoning proceeds in three steps:

1. Identify the statutory obligation: DHS must file a family case plan after adjudication, and the plan must pertain to each respondent parent. The plan’s function is to define clear, individualized requirements and a method for evaluating compliance and improvement.
2. Characterize the error: DHS filed a case plan for the mother only and “made no reference” to the father. Substituting a late-breaking “dispositional report” advocating termination cannot cure the statutory omission because a dispositional recommendation is not a substitute for a compliant plan that identifies goals, services, responsibilities, and evaluative benchmarks.
3. Reject futility/waiver rationales: The Court explicitly declines to excuse the omission based on the father’s near-total noncompliance and prior terminations. Echoing K.L. and Desarae M., it reiterates that it is improper to bypass a statutory precondition due to skepticism about the parent’s prospects. Without a plan, those assisting the parent lack the tools to structure services or assess success; thus, the statutory process itself is frustrated.

Because the omission strikes at the heart of the prescribed process, the Court applies Emily G.’s remedy: vacatur and remand so the statutory plan can be prepared, filed, and acted upon. The Court does not conduct a prejudice or harmless-error analysis; it treats the absence of a parent-specific plan as a process defect that necessitates remand.

Remedy and Scope

The Court vacates the termination only as to the father, leaving intact all other rulings, including the child’s placement with the mother. On remand:

• DHS must file an individualized family case plan for the father that satisfies § 49-4-408(b).
• The circuit court must conduct further proceedings consistent with the statutes and rules. This will likely include a renewed dispositional hearing at which the father’s compliance or noncompliance with the plan can be assessed.
• The circuit court remains free to terminate the father’s rights if statutory grounds are proven; the point is that the decision must follow the statutory process.

The Dissent: Waiver and No Prejudice

Justice Armstead dissents, arguing the Court should have affirmed termination because:

• The father failed to object to the absence of a case plan despite being represented by counsel, thus waiving the issue under the “raise or waive” rule (citing In re A.N.-1, No. 16-0477, 2016 WL 6679007 (W. Va. Nov. 16, 2016)).
• The father’s complete nonparticipation and documented history of extreme domestic violence, along with prior terminations, meant he suffered no prejudice from the lack of a plan.
• Memorandum decisions have affirmed terminations despite late or noncompliant plans where no prejudice was shown (In re Z.A., No. 21-0851, 2022 WL 1506059; In re M.S., No. 17-0223, 2017 WL 2608446; In re I.D., No. 20-0962, 2021 WL 5326512).

The dissent’s emphasis is on finality and child protection, warning that rigid insistence on process where a parent will not engage risks unnecessary delay. It reconciles the general rule that case plan omissions are error with the view that, in this case, the error was waived and nonprejudicial.

Harmonizing or Distinguishing the Authorities

The majority’s approach fits comfortably within the published precedents—Desarae M. and K.L.—which unequivocally characterize the absence of a compliant, individualized family case plan as reversible error. It draws on Emily G. to specify the remedy: vacatur and remand when the statutory process is substantially disregarded.

The dissent’s reliance on memorandum decisions highlights a tension: in some cases, appellate courts have declined to reverse where a case plan was late or technically deficient and the parent could not show prejudice. In re L.P. clarifies a critical distinction:

• Timeliness or technical defects may invite a prejudice analysis in some circumstances.
• The complete absence of a parent-specific plan (i.e., no plan “in regard to the petitioner” at all) is a process failure that triggers vacatur without a prejudice inquiry.

Put differently, the Court implicitly treats the absence of a plan for a respondent parent as a structural defect in the dispositional process, not subject to forfeiture by nonparticipation or excusal based on futility.

Impact and Forward-Looking Implications

The decision has immediate and practical consequences:

• For DHS and service providers: An individualized family case plan must be prepared and filed for each respondent parent after adjudication and before disposition. A dispositional report, however robust, is not a substitute. Agencies must ensure plans identify parent-specific goals, services, responsibilities, and metrics of success/failure.
• For circuit courts: Judges should confirm on the record that a parent-specific plan exists and has been filed before proceeding to disposition against that parent. If absent, the appropriate response is to continue disposition as to that parent and direct DHS to comply.
• For parents and counsel: Nonparticipation will not excuse DHS’s failure to file a plan. Conversely, failure to object does not necessarily forfeit the issue on appeal. Counsel should still preserve objections early; but In re L.P. shows the appellate court may mandate compliance even absent contemporaneous objection.
• For children’s counsel/guardians ad litem: Early identification of missing plans is critical. Insisting on statutory compliance at the outset avoids later vacatur that delays permanency—ironically, insisting on process serves permanency by preventing reversible error.
• For appellate practice: The Court signaled that plan absence is a reversible process error resolvable via memorandum decision, suggesting uniform application going forward. Expect more remands where a parent-specific plan is missing.

At a policy level, the ruling reinforces that the statutory scheme is designed not only to protect children but also to structure agency efforts and provide a fair, measurable path to reunification where feasible. Even when reunification seems unlikely, the process must be honored.

Complex Concepts Simplified

• Family case plan: A written, individualized roadmap required by statute that lists the services to be provided, the parent’s specific tasks and goals, timelines, and how success will be measured. It enables courts to evaluate whether a parent has made meaningful progress.
• Adjudication vs. disposition: Adjudication decides whether abuse or neglect occurred. Disposition decides the remedy (e.g., services, placement, termination). The case plan bridges adjudication and disposition by structuring the path forward.
• No reasonable likelihood of substantial correction: A dispositional finding that, within the near future, the parent is not likely to remedy the conditions of abuse/neglect. Often paired with a finding that termination is necessary for the child’s welfare.
• Improvement period: A time-limited opportunity for a parent to comply with services and demonstrate progress toward safe reunification. The mother here completed an improvement period; the father did not participate.
• Waiver vs. structural error: Waiver means a party forfeits an issue by failing to object. A structural or process error is so fundamental that an appellate court may reverse regardless of objection. In re L.P. treats the absence of a parent-specific case plan as a process defect requiring vacatur.
• Memorandum decision (Rule 21(d)): A streamlined appellate decision used when the outcome is controlled by existing law and oral argument would not aid the decisional process.

Practice Pointers

• DHS counsel and caseworkers:
  • Always prepare and file a separate or clearly delineated case plan for each respondent parent.
  • Do not rely on a dispositional report to substitute for the plan.
  • Document service of the plan and efforts to engage nonparticipating parents.
• Guardians ad litem:
  • Verify early that plans exist for all respondent parents; alert the court immediately if not.
  • Advocate for compliance to avoid remands that delay permanency.
• Parents’ counsel:
  • Demand a parent-specific plan promptly after adjudication; move to continue disposition if absent.
  • Advise clients that nonparticipation does not eliminate DHS’s plan duty but can still lead to termination once process is satisfied.
• Circuit judges:
  • Make an on-the-record finding that an individualized plan has been filed for each parent before proceeding to disposition.
  • If a parent is absent or noncompliant, continue as necessary and order DHS to file the required plan.

Potential Criticisms and Open Questions

• Concern about delay: Critics may argue that strict enforcement invites dilatory tactics by noncompliant parents. The majority’s response, implicit in K.L. and Desarae M., is that adherence to process at the outset avoids later reversals and ultimately promotes timely permanency.
• Waiver doctrine’s scope: The dissent raises whether a represented parent’s failure to object should waive the issue. The majority does not engage waiver, signaling that total absence of a plan is not subject to routine waiver analysis.
• Timeliness vs. existence: In re L.P. suggests an important distinction. Late or imperfect plans may sometimes be reviewed for prejudice; but complete absence of a plan for a parent requires vacatur.
• Content sufficiency: The opinion does not define the minimum content required beyond statutory references. Practitioners should hew closely to § 49-4-408(b)’s enumerated contents and ensure parent-specific tasks, services, and benchmarks are explicit.

Conclusion

In re L.P. powerfully reaffirms a straightforward but critical principle: no case plan, no termination. The West Virginia Supreme Court held that DHS must file an individualized family case plan addressing each respondent parent after adjudication and before disposition; the absence of such a plan is reversible error requiring vacatur and remand, even where the parent is noncompliant or fails to object. Anchored in In re K.L., In re Desarae M., and In re Emily G., the decision underscores that the statutory process is not optional.

For practitioners, the message is clear. Agencies must file parent-specific plans; courts must police compliance; counsel must insist on plans; and GALs should flag omissions early. While the dissent emphasizes waiver and prejudice, the majority’s approach prioritizes structural fidelity to the statutory scheme, aiming to protect both due process and the integrity of child welfare proceedings. On remand, the circuit court may again terminate the father’s rights if statutory grounds are established. But that determination must be made within the framework the Legislature has mandated.