No “Child’s-Choice” Visitation Without Findings and a Plan: In re H.C. Reinforces Child-Centered Continued-Association Standards in Guardianship Cases

No “Child’s-Choice” Visitation Without Findings and a Plan: In re H.C. Reinforces Child-Centered Continued-Association Standards in Guardianship Cases

Introduction

In a memorandum decision issued September 16, 2025, the Supreme Court of Appeals of West Virginia in In re H.C., No. 24-409 (Preston County CC-39-2019-JA-3), affirmed in part and vacated in part a circuit court’s order in a long-running abuse-and-neglect case. Petitioner Mother H.D. appealed the circuit court’s denial of her motion to modify a prior disposition (seeking reunification and a post-dispositional improvement period) and its grant of visitation “at the child’s discretion.” The high court:

  • Affirmed the denial of modification and the post-dispositional improvement period; and
  • Vacated the portion of the order that granted visitation without the required best-interests findings and without a concrete visitation plan, remanding with directions.

The decision builds on the Court’s recent guidance in In re H.M., 251 W. Va. 333, 912 S.E.2d 885 (2025), and earlier authorities, clarifying that when parental rights remain intact but custody is with a guardian, courts may grant continued association (visitation) only after making explicit best-interests findings focused on the child’s needs and, if visitation is appropriate, must adopt a specific, enforceable visitation plan. Delegating visitation decisions solely to a child or guardian without such findings and a plan is error.

Case Background and Key Issues

The case originated in January 2019 when the Department of Human Services (DHS) filed an abuse-and-neglect petition against H.D., alleging substance abuse, exposure of the child (H.C.) to domestic violence, and failure to meet basic needs due to incarceration. After H.D. stipulated, the circuit court adjudicated her as an abusing/neglecting parent and, in April 2019, imposed a disposition under West Virginia Code § 49-4-604(c)(5) to enable a subsidized legal guardianship with H.C.’s placement. The dispositional order was silent about the mother’s contact; a subsequent guardianship order said contact would be at the guardians’ discretion.

H.D. was released from incarceration in April 2021. Over 2022–2023, she sought modification under West Virginia Code § 49-4-606(a) and requested a post-dispositional improvement period, arguing that her release and rehabilitation constituted a material change warranting reunification or, at least, structured visitation. The circuit court held multiple evidentiary hearings, took the child’s in camera testimony three times, and heard from the child’s therapist. The child consistently expressed fear and opposition to contact with her mother, and therapy notes and testimony documented anxiety, regression, and conflict around visits. H.D. presented evidence of rehabilitation: probation compliance, negative drug screens, employment, home stability, and cessation of domestic violence.

In June 2024, the circuit court denied modification (finding reunification not in the child’s best interests) but granted visitation—conditioned entirely on the child’s desire to have contact—and set similar “at child’s discretion” parameters for one sibling relationship. H.D. appealed, challenging the lack of enforceable visitation and the denial of a post-dispositional improvement period.

The appellate issues were:

  • Whether the circuit court erred by granting “visitation at the child’s discretion” without required best-interests findings and without a visitation plan; and
  • Whether the denial of a post-dispositional improvement period was an abuse of discretion.

Summary of the Opinion

Applying clear-error review to factual findings and de novo review to legal questions (see Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)), the Supreme Court held:

  • The circuit court erred by granting visitation without first making the requisite best-interests findings for continued association and without formulating a concrete visitation plan. Relying on In re H.M. (2025), In re K.S. (2022), In re Jonathan G. (1996), and Honaker v. Burnside (1989), the Court vacated the visitation provisions and remanded for the circuit court to determine whether continued association is in H.C.’s best interests. If the court finds visitation appropriate, it must adopt a specific plan.
  • The circuit court properly denied modification and, consequently, did not err by denying a post-dispositional improvement period. Although H.D. showed a material change (release from incarceration and compliance), the circuit court found that modification to reunify was not in the child’s best interests, a finding H.D. did not challenge on appeal; thus, no improvement period was warranted under West Virginia Code § 49-4-606(a) and § 49-4-610(3).

Disposition: Affirmed in part (denial of modification), vacated in part (visitation), and remanded with directions to conduct a best-interests analysis of continued association and, if granted, to implement a visitation plan.

Detailed Analysis

Precedents Cited and Their Role

  • In re H.M., 251 W. Va. 333, 912 S.E.2d 885 (2025): Central to the Court’s decision. It holds that when visitation is “found appropriate,” a “proper visitation plan must be formulated” and reiterates that continued visitation where parental rights remain intact but custody is elsewhere depends on whether such contact is in the child’s best interests. The Court used H.M. both to fault the absence of a best-interests analysis for continued association and to require a concrete plan if visitation is ordered.
  • In re K.S., 246 W. Va. 517, 874 S.E.2d 319 (2022): Quoted by H.M. and again here for the proposition that a proper visitation plan must be formulated whenever visitation is appropriate. This reinforces that courts may not leave the “if/when/how” of visitation entirely to others.
  • In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996): Syllabus Point 11 recognizes a child’s right to continued association with significant individuals (including parents whose rights remain intact) if, and only if, it is in the child’s best interests. The guiding principle is whether a strong emotional bond exists such that cessation might harm the child during the transition and long-term development. The Court used this standard to frame the necessary inquiry on remand.
  • Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989): Emphasizes that continued association is the child’s right—not the parent’s—and that visitation serves the child’s emotional well-being by maintaining valuable relationships. The Court cited Honaker to underscore that the best-interests analysis must be child-centric.
  • In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): Provides the standard of review: factual findings are reviewed for clear error; legal conclusions are reviewed de novo.

Statutory Framework

  • W. Va. Code § 49-4-604(c)(5): Authorizes disposition committing a child temporarily to a suitable person or guardian when a parent is unwilling or unable to provide adequately for the child’s needs. Here, it facilitated a subsidized legal guardianship in 2019.
  • W. Va. Code § 49-4-606(a): Governs modification of dispositional orders. A court may modify if the movant proves, by clear and convincing evidence, both a material change in circumstances and that the modification is in the child’s best interests. The circuit court found the first prong met (material change) but the second unmet (best interests), which foreclosed reunification.
  • W. Va. Code § 49-4-610(3): Allows a post-dispositional improvement period when the parent moves in writing and proves by clear and convincing evidence that they are likely to fully participate. The Supreme Court concluded that where modification to reunify is not in the child’s best interests, a post-dispositional improvement period is properly denied.

The Court’s Legal Reasoning

The high court’s analysis proceeds in two steps: the visitation ruling and the modification/improvement-period ruling.

1) Visitation/continued association

  • The circuit court granted mother–child visitation but made it entirely contingent on the child’s desire—without a best-interests analysis and without any visitation plan.
  • Under H.M., K.S., and Jonathan G., continued association is permissible only after an express finding that such contact is in the child’s best interests—typically informed by the presence of a strong emotional bond whose abrupt cessation might harm the child.
  • The record showed the opposite: the child consistently opposed contact, experienced anxiety, regression, and interpersonal conflict around visits, and expressed that interaction with her mother triggered trauma, nightmares, and anger. The therapist confirmed these reactions and opined that the child had the maturity to articulate her preferences.
  • Given those findings, the circuit court’s grant of visitation without explaining how contact was in the child’s best interests—and without articulating a structured plan—was legal error. The Supreme Court vacated the visitation provisions and remanded for a focused best-interests determination specifically on continued association. If continued association is deemed beneficial, the court must craft a concrete, enforceable visitation plan.
  • The Court emphasized that the right at stake is the child’s right to continued association (not a parent’s entitlement), and it is always governed by the child’s best interests (citing Honaker).

2) Modification and post-dispositional improvement period

  • Modification under § 49-4-606(a) requires proof, by clear and convincing evidence, of both a material change in circumstances and that modification is in the child’s best interests.
  • The circuit court credited the mother’s rehabilitation and found a material change, but concluded reunification was not in the child’s best interests because of ongoing trauma and the child’s consistent wishes to remain with guardians.
  • H.D. did not challenge that best-interests finding on appeal. Because the statutory best-interests prong was not met, the denial of modification necessarily stands.
  • For the same reason, the denial of a post-dispositional improvement period was proper. Even if a parent can show likely participation (§ 49-4-610(3)), an improvement period cannot be grafted onto a case where modification to reunify is not in the child’s best interests under § 49-4-606(a).

What the Court Did—and Did Not—Decide

  • Did vacate the visitation provisions insofar as they applied to the petitioner mother, because the circuit court made no best-interests findings on continued association and adopted no plan.
  • Did not terminate or conclusively deny all visitation. Instead, it remanded for the circuit court to determine, on a developed record, whether continued association is in this child’s best interests; and, if so, to craft a specific, enforceable plan.
  • Did affirm the denial of modification and, implicitly, the denial of a post-dispositional improvement period.
  • Did not disturb orders concerning other children or adult respondents; sibling-visitation portions were not appealed by the guardian ad litem.
  • Did not hold that a child’s stated wishes are dispositive; they are important evidence within a best-interests framework that must consider emotional bonds, trauma, therapist input, and the overall welfare of the child.

Impact and Implications

This decision has practical and doctrinal consequences across abuse-and-neglect and guardianship cases where parental rights remain intact but custody lies with guardians or third parties.

  • No “child’s-choice” or “guardian’s-choice” visitation orders without findings. Trial courts may not abdicate their duty to adjudicate visitation by delegating the decision entirely to the child or guardians. Courts must make best-interests findings and, if allowing visitation, must set the details in a plan.
  • Reaffirmation of child-centered rights. Continued association is the child’s right. A parent’s rehabilitation and compliance—though commendable and relevant—does not create an entitlement to contact absent a best-interests showing grounded in the child’s needs and the presence (or absence) of a supportive emotional bond.
  • Trauma-informed best-interests analysis. Evidence of child distress, regression, and triggering around contact can defeat continued association. The opinion signals that courts must weigh therapeutic evidence heavily and avoid imposing contact that exacerbates harm.
  • Mandatory visitation planning when appropriate. If continued association serves the child, courts must adopt a plan delineating the logistics and safeguards. This will likely standardize trauma-informed, stepwise, and reviewable visitation frameworks in West Virginia practice.
  • Improvement periods are not standalone remedies. Where modification to reunify is not in the child’s best interests, courts need not (and should not) award a post-dispositional improvement period simply because a parent is motivated and compliant. Best interests remain the lodestar.

Practice Pointers

  • For trial courts:
    • Make explicit findings on the continued association question: Does a strong emotional bond exist? Would cessation harm the child? Does contact promote stability and development, or trigger trauma?
    • Consider the child’s voice (especially when developmentally mature), therapist testimony and records, and the quality—not merely the existence—of prior contact.
    • If visitation is appropriate, adopt a detailed plan specifying: frequency, duration, location, supervision level, therapeutic supports, communication methods (e.g., phone/video), safe exchange protocols, behavioral boundaries, step-up/step-down conditions, and review hearings.
    • Avoid delegating visitation decisions wholesale to the child, guardians, or therapists. Consultation is permissible; ultimate authority rests with the court.
  • For practitioners representing parents:
    • Develop a record addressing the child’s best interests in continued association, including evidence of a positive emotional bond and absence of harm from contact.
    • Propose a trauma-informed visitation plan upfront, with therapeutic supports and graduated steps to rebuild trust, to aid the court’s planning duty.
    • Recognize that compliance and rehabilitation—while necessary—are insufficient without demonstrating child-centric benefits.
  • For GALs and DHS:
    • Present clear evidence of the child’s reactions to contact, including therapist input and in camera statements, linking those reactions to best-interests factors.
    • If visitation is considered, insist on concrete, enforceable planning and safeguards; if not, ensure the record supports why no plan is in the child’s best interests.

Complex Concepts Simplified

  • Continued association: Post-disposition contact (often with a parent whose rights are intact but who lacks custody) that may be allowed if it serves the child’s best interests. It is a child’s right, not a parental entitlement.
  • Best interests of the child: The governing standard focusing on the child’s welfare, safety, emotional security, developmental needs, and stability. It weighs trauma, therapeutic recommendations, the child’s preferences, and the quality of relationships.
  • Visitation plan: A court-ordered, enforceable schedule detailing when and how visits occur, including supervision, frequency, place, duration, supports, and conditions for adjustment. Plans should be trauma-informed and tailored.
  • Material change in circumstances: A significant development (e.g., release from incarceration, rehabilitation) occurring after the initial disposition. It is necessary but not sufficient for modification; the change must also support the child’s best interests.
  • Post-dispositional improvement period: A structured period for a parent to complete remedial services after disposition. It requires a written motion and clear and convincing evidence that the parent is likely to fully participate; it is typically tethered to a viable path toward reunification in the child’s best interests.
  • In camera interview: A judge’s private interview with a child, outside the presence of parents/parties, to gather candid input while minimizing stress.

Conclusion

In re H.C. is a significant reinforcement of West Virginia’s child-centered approach to post-dispositional contact. The Supreme Court made clear that circuit courts cannot simply announce “visitation at the child’s discretion” or leave contact to guardians when parental rights remain intact. Instead, courts must:

  • First, determine whether continued association serves the child’s best interests, guided by evidence of emotional bonds, therapeutic input, and the child’s experience of contact; and
  • If appropriate, second, implement a specific, enforceable visitation plan.

At the same time, the decision underscores that parental rehabilitation alone does not compel modification or an improvement period; the child’s best interests remain paramount under § 49-4-606(a). In practical terms, In re H.C. will likely prompt more rigorous findings and more carefully crafted visitation plans—or well-supported denials of contact—across guardianship and abuse-and-neglect dockets, improving clarity, enforceability, and alignment with children’s safety and emotional well-being.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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