Noncompliance and Open‑Ended Incarceration: Termination Without Less Restrictive Alternatives and No Post‑Dispositional Improvement Period

Case: In re A.F. and H.J., No. 24-574

Court: Supreme Court of Appeals of West Virginia

Date: September 30, 2025

Lower Court: Circuit Court of Hardy County (Order entered September 3, 2024)

Disposition on Appeal: Affirmed (Memorandum Decision under W. Va. R. App. P. 21)

Introduction

This memorandum decision affirms the termination of Petitioner Father X.F.’s parental rights to A.F. and his custodial rights “such as he has” to H.J. The West Virginia Department of Human Services (DHS) initiated abuse and neglect proceedings in June 2023 alleging the children were exposed to domestic violence, illicit drugs and paraphernalia, and unsafe and unsanitary housing conditions. The petitioner stipulated at adjudication to substance abuse impairing his parenting, domestic violence in the children’s presence, and failure to provide suitable housing and hygiene.

After receiving a post‑adjudicatory improvement period—and later an extension—the petitioner continued to struggle with compliance: he tested positive for methamphetamine and alcohol, was incarcerated, was discharged from rehabilitative programming for rule violations (including a fight), and failed to complete anger management and adult life skills classes. At disposition, the circuit court found no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and terminated his parental rights under West Virginia Code § 49‑4‑604(c)(6).

On appeal, the petitioner argued that the circuit court should have applied a less restrictive alternative under § 49‑4‑604(c)(5), rather than terminating his rights, and that his participation in services while incarcerated constituted a “substantial change in circumstances” warranting a post‑dispositional improvement period under § 49‑4‑610(3)(D). The Supreme Court rejected both contentions and affirmed.

Summary of the Opinion

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

Termination may be imposed without resort to less restrictive alternatives when there is no reasonable likelihood the conditions of abuse or neglect can be substantially corrected. See Syl. Pt. 5 (in part), In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980); W. Va. Code § 49‑4‑604(c)(6) and (d)(3).
The record—continued drug use during the improvement period, discharge for noncompliance from day report and a correctional facility program, failure to complete services, and ongoing incarceration with no concrete release date—provided clear and convincing evidence that the statutory standard was met.
A further, post‑dispositional improvement period was not warranted because the petitioner did not show a “substantial change in circumstances” nor a likelihood of substantial compliance, as required by W. Va. Code § 49‑4‑610(3)(D). The Court emphasized that trial courts need not “exhaust every speculative possibility of parental improvement” when the child’s welfare would be seriously threatened. See Kristin Y., Syl. Pt. 4 (in part), quoting R.J.M..

The Court therefore affirmed the termination of the petitioner’s parental rights to A.F. and his custodial rights to H.J., noting the children’s permanency plan of adoption in their current placement.

Analysis

Precedents Cited and Their Influence

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): The Court reaffirmed the standard of review governing appeals in abuse and neglect cases—factual findings are reviewed for clear error and legal conclusions de novo. This framed the Court’s deferential posture toward the circuit court’s credibility determinations and factual synthesis regarding compliance and the likelihood of correction.
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011): Two aspects of Kristin Y. guided the outcome:
- Termination without less restrictive alternatives is permissible when there is no reasonable likelihood of correction. This directly counters the petitioner’s request for a § 49‑4‑604(c)(5) disposition.
- Courts are not required to “exhaust every speculative possibility of parental improvement” where the child’s welfare is at stake. This principle supports denying further improvement periods when prior opportunities failed and the record signals ongoing risk and instability.
In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980): The foundational case from which Kristin Y. draws the abovementioned principles. By invoking R.J.M., the Court situates its decision within a longstanding framework prioritizing child welfare and permanency over speculative prospects of parental improvement.

Legal Reasoning: Application of Statutes to the Record

The Court’s analysis closely tracks the statutory scheme in Chapter 49:

No reasonable likelihood of correction—§ 49‑4‑604(d)(3). This subsection provides that no reasonable likelihood exists when the parent has not responded to or followed through with a reasonable family case plan or rehabilitative efforts. The record showed:
- Repeated illicit drug use during the pendency of the case and during the improvement period, including methamphetamine and alcohol positives leading to a probation violation and incarceration.
- Discharge for noncompliance from both day report and a correctional center program (the superintendent cited “numerous rule infractions,” including a fight).
- Failure to complete anger management and adult life skills classes as required by the family case plan.
- Ongoing incarceration at disposition without a concrete release date, undermining near‑term reunification and stability.
These facts, taken together, satisfied the statutory benchmark for “no reasonable likelihood” by clear and convincing evidence.
Dispositional authority—§ 49‑4‑604(c)(6) versus less restrictive alternatives under § 49‑4‑604(c)(5). Once the circuit court found no reasonable likelihood of correction and determined that termination was in the children’s best interests, termination under (c)(6) was authorized. In this posture, Kristin Y. confirms courts may terminate without utilizing less restrictive alternatives (such as guardianship or custodial placement that preserves parental rights) when statutory criteria are met.
Post‑dispositional improvement period—§ 49‑4‑610(3)(D). To secure a post‑dispositional improvement period after a previous improvement period, a parent must demonstrate a substantial change in circumstances and that, due to that change, they are likely to substantially comply. The petitioner’s argument centered on enrollment in services while incarcerated. But testimony established multiple rule infractions and expulsion from programming, continued drug positives before incarceration, and incomplete required services. The circuit court, therefore, reasonably concluded the prerequisites of § 49‑4‑610(3)(D) were not met.
Best interests and permanency. The circuit court expressly found that continued placement with the petitioner was contrary to the children’s welfare, that the petitioner could not sustain a suitable, safe home, and that significant time would be required for the children to achieve stable, permanent integration if reunification were attempted. With adoption as the permanency plan, the children’s need for timely permanency weighed decisively in favor of termination.
Custodial rights for a non‑biological caregiver. As to H.J., the circuit court terminated the petitioner’s rights “such as he has,” which the Supreme Court read as terminating his custodial rights under § 49‑4‑604(c)(6). The Court applied the same statutory analysis to custodial rights held by a non‑biological caregiver, reinforcing that dispositional standards extend to any parental or custodial rights at issue in abuse and neglect proceedings.

Impact and Practical Implications

Clarifying “substantial change” while incarcerated. Merely enrolling in services during incarceration—especially when marred by rule infractions or program expulsions—does not, without more, constitute the “substantial change in circumstances” necessary for a post‑dispositional improvement period under § 49‑4‑610(3)(D). Courts will look for sustained, demonstrable change and a credible likelihood of future compliance.
Open‑ended incarceration weighs against delay. When a parent remains incarcerated at disposition without a concrete release date, the prospects for timely correction are diminished. This factor, combined with prior noncompliance, supports moving to permanency without further delay.
No obligation to pursue less restrictive alternatives when statutory grounds for termination are proven. The decision reaffirms that once “no reasonable likelihood” and best‑interests findings are made, termination can be ordered without trying § 49‑4‑604(c)(5) options first.
Application to non‑biological custodians. The Court’s acceptance of terminating “rights such as he has” clarifies that the statutory termination framework applies to custodial rights held by non‑biological caregivers living in the family unit, aligning dispositional outcomes across caregiver statuses when abuse and neglect are established.
Service compliance must be meaningful and sustained. Partial or intermittent compliance—especially when followed by relapses, rule violations, or failure to complete core services such as anger management—will seldom carry the burden to forestall termination after a full improvement period and extension.
Permanency planning. The Court’s deference to an adoption plan in the current placement underscores the primacy of timely permanency where prolonged efforts at rehabilitation have failed.

Complex Concepts Simplified

Family Case Plan: A court‑approved roadmap of services and obligations (e.g., drug testing, parenting and life skills classes, anger management, maintaining housing and employment) designed to address the causes of abuse or neglect and to facilitate reunification.
Improvement Period: A time‑limited opportunity for a parent to participate in services and demonstrate the ability to correct conditions. Post‑adjudicatory improvement periods occur after the court finds abuse/neglect. Post‑dispositional improvement periods may be granted at disposition in limited circumstances, but if a parent has already had an improvement period, they must show a “substantial change in circumstances” and a likelihood of substantial compliance. See W. Va. Code § 49‑4‑610(3)(D).
No Reasonable Likelihood of Correction: Under § 49‑4‑604(d)(3), this exists where the parent has not responded to or followed through with a reasonable case plan or rehabilitative efforts designed to reduce or prevent the abuse or neglect. It focuses on the parent’s performance over time, not isolated moments of compliance.
Less Restrictive Alternatives: Dispositional options short of terminating parental rights—such as placing the child with a fit and willing caretaker while preserving parental rights. See § 49‑4‑604(c)(5). When the statutory criteria for termination are met, courts need not choose these alternatives first.
Termination Standard: If there is no reasonable likelihood that conditions of abuse or neglect can be corrected in the near future and termination is necessary for the child’s welfare, the court may terminate parental rights. See § 49‑4‑604(c)(6). Findings must be supported by clear and convincing evidence.
Best Interests of the Child: A paramount consideration throughout abuse and neglect proceedings that prioritizes the child’s safety, stability, and timely permanency, including adoption when reunification is not feasible.
Day Report and Correctional Programming: Community‑based supervision and rehabilitative programs. Successful participation can support reunification; discharge for noncompliance or rule infractions often evidences an inability or unwillingness to engage in needed change.

Conclusion

In this memorandum decision, the Supreme Court of Appeals of West Virginia reaffirmed two core principles in abuse and neglect jurisprudence: (1) when a parent fails to follow a reasonable case plan and remains incarcerated without a concrete release date, a circuit court may terminate parental rights without first employing less restrictive alternatives; and (2) participation in services while incarcerated—especially when accompanied by rule violations, program expulsions, and incomplete services—does not constitute a “substantial change in circumstances” warranting a post‑dispositional improvement period after earlier opportunities have failed.

Grounded in Kristin Y. and R.J.M., and reviewed under the framework of Cecil T., the Court’s decision emphasizes the primacy of the children’s best interests and timely permanency over speculative prospects of parental rehabilitation. For practitioners and courts, the message is clear: sustained, meaningful compliance is required to preserve parental rights after adjudication; when the record shows the opposite, termination under § 49‑4‑604(c)(6) is appropriate and further delay is unwarranted.