Noncompliance with Improvement Period and Visitation as Evidence of No Reasonable Likelihood of Correction: Commentary on In re J.B. and A.B.

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re J.B. and A.B., No. 24-643 (Nov. 4, 2025), affirms the termination of a mother’s parental rights to two minor children. Although issued as a memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure, the opinion provides a clear and instructive application of West Virginia’s abuse and neglect statutes, particularly regarding:

When a court may find there is “no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future”; and
When a circuit court may proceed directly to termination of parental rights without employing less restrictive alternatives.

The case centers on Petitioner Mother, J.N., whose children, J.B. and A.B., were removed from her care after the Department of Human Services (“DHS”) alleged substandard and unsafe home conditions and failure to provide basic necessities. After initially stipulating to abuse and neglect and receiving a post-adjudicatory improvement period, the mother largely failed to comply with the service plan, ceased visitation, and did not remedy the underlying conditions. The circuit court terminated her parental rights, and she appealed solely on the ground that there was a reasonable likelihood she could correct the conditions.

The Supreme Court affirmed, emphasizing that persistent noncompliance with the family case plan, missed visitation, and failure to address unsafe housing conditions fall squarely within the statutory definition of “no reasonable likelihood” of correction and justify termination without intermediate, less restrictive alternatives.

II. Factual and Procedural Background

A. Initiation of DHS Involvement and the Abuse and Neglect Petition

In May 2023, the West Virginia Department of Human Services filed an abuse and neglect petition in the Circuit Court of Wirt County concerning two children, J.B. and A.B.

The petition alleged, in substance, that J.N. failed to provide:

Necessary food, clothing, shelter, and bedding; and
A minimally safe and sanitary residence.

According to the petition, the home was:

“Dirty” and “extremely cluttered,”
Without electricity,
And the children’s bedroom was filled with trash, liquor bottles, and other miscellaneous objects.

These allegations fall squarely within the statutory concept of “neglect,” i.e., failure to supply the child with necessary food, clothing, shelter, supervision, or education when financially and physically able to do so.

B. Adjudication and the Post-Adjudicatory Improvement Period

At an adjudicatory hearing in October 2023, J.N. stipulated that she failed to provide adequate housing. On the basis of this stipulation, she was adjudicated an “abusing and neglecting parent” as to both children.

Following adjudication, the circuit court granted J.N. a post-adjudicatory improvement period. An “improvement period” is a structured opportunity for a parent to correct identified deficiencies through participation in services. Here, the terms and conditions of the improvement period required J.N. to:

Attend all multidisciplinary team (MDT) meetings and court hearings;
Participate in parenting classes;
Attend scheduled visitation with the children;
Obtain and maintain a proper, safe residence for the children;
Undergo a parental fitness evaluation;
Refrain from using drugs or alcohol;
Participate in therapy sessions; and
Keep in regular contact with her case workers.

This structure reflects the typical West Virginia abuse and neglect model: DHS offers services while the parent must demonstrate engagement, progress, and stability.

C. Status Hearing and Early Noncompliance

At a status hearing in February 2024, the circuit court found that J.N. was not substantially compliant with the improvement period:

She failed to maintain regular contact with her assigned case worker;
She was not participating in therapy;
She missed several parenting classes;
She missed at least one supervised visit with the children; and
The home remained without electricity or water service, indicating no meaningful progress on the core housing issue.

Despite this noncompliance, the court did not immediately terminate the improvement period. Instead, as the Supreme Court notes in a footnote, the circuit court appears to have allowed the improvement period to continue, reflecting a judicial preference to give parents every reasonable opportunity to correct conditions.

D. Protective Order Against Father and Further Deterioration in Participation

Subsequently, J.N. obtained a domestic violence protective order against the children's father, alleging harassment. This is one of the few affirmative steps she took in the record and might, in another context, be seen as progress toward protecting the children. However, it did not offset her other, more pervasive failures.

DHS submitted reports showing that:

J.N.’s participation in services “dwindled”;
She missed a substantial number of visits with the children, which adversely affected the children’s emotional well-being; and
As a result, the circuit court suspended visitation.

Later, DHS reported that J.N. had been discharged from services for noncompliance and, by June 2024, had ceased all contact with DHS.

E. Dispositional Hearing and Termination of Parental Rights

A dispositional hearing was held in September 2024. J.N. did not attend, although she was represented by counsel.

DHS presented evidence that:

J.N. failed to participate in services or visitation since April 2024;
She maintained inconsistent contact with her case worker until ceasing contact altogether;
She failed to make progress in correcting the unfit home conditions;
As of April 2024, she allowed individuals whose own parental rights had previously been terminated to live in the home; and
Drugs and drug paraphernalia were found in the residence.

DHS had attempted a more recent assessment of the home, but those attempts were unsuccessful because J.N. did not cooperate. She was explicitly told to contact DHS once she had corrected the unfit conditions and was even offered services to assist in restoring utilities. She never did so.

Based on this record, the circuit court concluded:

There was no reasonable likelihood that J.N. could substantially correct the conditions of abuse or neglect in the near future; and
Termination of parental rights was necessary for the children’s welfare, particularly in light of their need for stability and the parents’ lack of progress toward reunification.

The circuit court terminated J.N.’s parental rights to both children and expressly terminated her improvement period. The father’s parental rights were also terminated. The permanency plan for J.B. and A.B. is adoption in their current placements.

III. Summary of the Supreme Court’s Decision

On appeal, J.N. raised a single assignment of error: that the circuit court erred in finding there was no reasonable likelihood that she could correct the conditions of abuse and neglect and in terminating her parental rights.

The Supreme Court:

Applied the usual standard of review from In re Cecil T.: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo;
Reiterated the statutory definition in West Virginia Code § 49-4-604(d)(3), providing that there is no reasonable likelihood of correction when the parent has not responded to or followed through with a reasonable family case plan or rehabilitative efforts; and
Held that the circuit court’s finding met this standard, given J.N.’s extensive noncompliance, discharge from services, missed visits, and unchanged home conditions.

The Court further relied on:

In re Katie S. for the proposition that a parent’s willingness to visit children in out-of-home placement is a significant indicator of potential for improvement; and
In re Kristin Y. and In re R.J.M. for the rule that once no reasonable likelihood of correction is found, a circuit court may terminate parental rights without utilizing less restrictive alternatives.

Finding ample evidence to support the circuit court’s determinations, the Supreme Court affirmed the October 1, 2024 order terminating J.N.’s parental rights.

IV. Legal Framework

A. Statutory Structure: West Virginia Code § 49-4-604

Disposition in abuse and neglect cases is governed primarily by West Virginia Code § 49-4-604. Two subsections are central here:

§ 49-4-604(d)(3): A court may find there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected when:
“[t]he abusing parent … [has] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts.”
§ 49-4-604(c)(6): One of the dispositional options is:
Termination of parental rights “[u]pon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child.”

Thus, termination requires two linked findings:

No reasonable likelihood of correction in the near future; and
Termination is necessary for the child’s welfare.

B. Abuse and Neglect Procedure: Adjudication, Improvement Period, Disposition

The opinion exemplifies the stages of an abuse and neglect case in West Virginia:

Adjudication: The court determines whether the child is abused and/or neglected and whether the respondent is an “abusing parent.” Here, J.N. stipulated to inadequate housing and was adjudicated an abusing and neglecting parent.
Improvement Period: A discretionary period during which the parent engages in services to remedy the conditions. The court granted J.N. a post-adjudicatory improvement period with detailed terms.
Status/Review Hearings: The court periodically reviews compliance and may modify or terminate the improvement period.
Disposition: The court selects a final dispositional alternative, which may range from returning the child, to guardianship, to termination of parental rights.

The key statutory gateway to termination here is the failure to follow through with the family case plan, which the Court finds clearly established.

V. Precedents and Authorities Cited

A. In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)

The Court cites syllabus point 1 of Cecil T. for the standard of review in abuse and neglect appeals:

Findings of fact by the circuit court are reviewed under a clearly erroneous standard. The Supreme Court does not reweigh evidence or reassess witness credibility; it only asks whether the findings are plainly wrong in light of the record.
Conclusions of law and application of law to the facts are reviewed de novo, meaning no deference is owed to the circuit court’s interpretation of legal rules.

This standard frames the Court’s analysis: the mother’s appeal was inherently limited because she challenged the weight and interpretation of the evidence rather than showing legal error or clear factual error.

B. In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996)

The Court quotes a footnote from Katie S.:

“The level of interest in visiting the children when outside the petitioner's custody is a significant factor in determining the parent's potential to improve sufficiently and achieve minimum standards to parent the child.”

This establishes a key evaluative principle: Visitation is not just a privilege; it is an important indicator of parental commitment and capacity for change. The Supreme Court uses this precedent to emphasize that:

J.N.’s missed visits and the ultimate suspension of visitation reflect a lack of sustained effort to maintain a relationship with the children; and
This lack of contact is probative of her limited potential to improve sufficiently to meet minimum parenting standards.

Thus, missed visits are not treated as a peripheral issue but as a central indicator of parental prospects.

C. In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), and In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

The Court invokes syllabus point 5 of Kristin Y., which incorporates syllabus point 2 of R.J.M., for the proposition that:

When it is found that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future, a circuit court may terminate parental rights without the use of intervening less restrictive alternatives.

This line of cases addresses a frequent argument in termination appeals: that the court should have used less drastic measures (e.g., legal guardianship, extended improvement periods, monitored placements) before resorting to termination. The Supreme Court reaffirms that once the statutory finding of “no reasonable likelihood” is properly made, the law does not require additional attempts at less restrictive alternatives.

Here, the Court finds that since the circuit court properly determined both (1) no reasonable likelihood of correction and (2) necessity for the children’s welfare, it was within its discretion to go directly to termination.

D. West Virginia Code § 49-4-604

The Court’s application of § 49-4-604 is straightforward but significant. It underscores:

The statutory definition of “no reasonable likelihood” in subsection (d), especially (d)(3); and
The statutory authorization for termination in subsection (c)(6) when the “no reasonable likelihood” standard is met and termination is necessary for the child’s welfare.

By directly tying the factual record to these specific statutory provisions, the Court demonstrates a textbook application of the legislative framework to a case of extended noncompliance and lack of progress.

VI. The Court’s Legal Reasoning

A. Standard of Review and Scope of Appellate Review

The Court begins with the standard of review from Cecil T., signaling that it will defer heavily to the circuit court’s factual findings unless clearly erroneous. Given that J.N.’s challenge focused on whether the evidence supported a finding of “no reasonable likelihood of correction,” she faced an uphill battle:

The record of noncompliance is well-documented and was not effectively rebutted;
She did not attend the dispositional hearing to offer an alternative version of events or evidence of belated progress; and
The Supreme Court is not a trier of fact and does not reweigh evidence.

Thus, once the Court accepts the circuit court’s factual account, the legal conclusion under § 49-4-604(d)(3) flows almost inescapably.

B. Noncompliance with the Family Case Plan

The crux of the Supreme Court’s reasoning lies in subsection (d)(3): noncompliance with the family case plan as a statutory marker of no reasonable likelihood of correction.

The Court emphasizes:

Repeated noncompliance with DHS remedial services;
Discharge from services for noncompliance;
Significant missed visitation leading to suspension of visits; and
Long-standing failure to remedy the core housing deficiencies or even inform DHS of any purported improvements.

By June 2024, J.N. had ceased all contact with DHS. The Court highlights that this is not a case of partial or uneven participation; rather, it is a pattern that culminated in near-total disengagement. That factual pattern makes the statutory language—“[has] not responded to or followed through with a reasonable family case plan”—directly applicable.

C. Significance of Missed Visitation

Relying on Katie S., the Court notes that the level of interest in visiting children in out-of-home care is a “significant factor” in assessing parental potential to improve.

Here:

J.N. missed numerous visits,
Her absence from visits negatively affected the children’s emotional well-being, and
The circuit court eventually suspended visitation due to her nonattendance.

The Supreme Court treats this not as a merely procedural issue, but as evidence that J.N. did not maintain the parental bond or demonstrate sufficient commitment to reunification. This is especially important given that termination of parental rights is generally considered a “last resort.” The Court’s emphasis on visitation underscores that a parent’s actions during out-of-home placement—especially continued efforts to see the children—are critical evidence of whether they can meet minimal parenting standards in the future.

D. Failure to Remedy Housing Conditions and Associated Risks

The original petition concerned, in large part, unsafe and unfit housing conditions. The Court notes that:

Throughout the life of the case, the basic problems (lack of electricity and water, clutter, unsafe living spaces) remained uncorrected;
Reports as late as April 2024 reflect an inadequate home;
J.N. allowed individuals whose own parental rights had been terminated to move into the residence, compounding risk factors; and
Drugs and drug paraphernalia were found in the home.

DHS attempted to reassess the home, but J.N. did not cooperate or provide access. Crucially, DHS offered services, including assistance with restoring utilities, and instructed J.N. to reach out once conditions improved. She neither used the services nor reported improvements.

Thus, beyond noncompliance with procedural requirements, there is substantive non-remediation of the very conditions that triggered state intervention. This undercuts any claim of future likelihood of correction.

E. “No Reasonable Likelihood of Correction in the Near Future”

Taking the above together—noncompliance with services, ceased contact, missed visits, lack of housing improvements, added risk factors—the Court holds that the circuit court had “ample evidence” to find no reasonable likelihood of substantial correction in the near future.

The phrase “in the near future” is inherently fact-dependent and tied to the children’s need for stability. In this case, by disposition:

The case had been ongoing for well over a year (from May 2023 to September 2024);
J.N. had largely disengaged by mid-2024;
No last-minute surge of compliance or improvement was presented to the court; and
The children’s emotional well-being was reportedly harmed by the uncertainty and missed contact.

On those facts, a prediction that improvement was unlikely in the near future is both reasonable and legally sustainable.

F. Necessity for the Children’s Welfare and Direct Termination

West Virginia law demands not only a finding of “no reasonable likelihood of correction” but also that termination be “necessary for the welfare of the child.” The circuit court made that finding, emphasizing:

The parents’ lack of participation undermined progress toward reunification; and
The children required continuity of care in a stable environment.

The Supreme Court accepts this, further referencing Kristin Y. and R.J.M. to reiterate that once these findings are in place:

The circuit court is not required to try additional less restrictive alternatives such as long-term foster care, guardianship, or extended improvement periods.
Termination becomes a legally permissible option—even preferable when children have been in limbo for a significant period.

Given that J.B. and A.B. have a permanency plan of adoption in their current placements, termination frees them from prolonged uncertainty and enables prompt permanency.

G. Rejection of the Mother’s Sole Assignment of Error

J.N.’s only argument was that there was, in fact, a reasonable likelihood she could correct the conditions. She did not point to:

Documented progress in services;
Evidence of improved housing conditions;
Recent consistent visitation or contact; or
Any explanation for her substantial noncompliance and eventual disengagement.

In effect, the appeal attempted to reargue the weight of the evidence. Under the deferential standard of review, and in the absence of evidence contradicting DHS’s reports and testimony, the Supreme Court easily concludes that the circuit court’s findings are supported and that termination was proper.

VII. Clarifying Complex Legal Concepts

A. “Abusing and Neglecting Parent”

In West Virginia abuse and neglect proceedings, an “abusing parent” is not limited to physical abuse. It includes parents who:

Fail to provide necessary food, clothing, shelter, supervision, or education; or
Expose the child to unsafe, unsanitary, or drug-involved environments.

Once a parent is adjudicated an abusing parent (as J.N. was by stipulation), the focus shifts to whether the parent can change conditions sufficiently to provide safe and adequate care.

B. “Improvement Period”

An improvement period is a court-ordered, time-limited opportunity for a parent to correct conditions of abuse or neglect. During this period:

DHS provides services (e.g., parenting classes, therapy, substance abuse treatment, in-home services, assistance with utilities or housing);
The parent must demonstrate engagement and progress (e.g., regular attendance, cooperation, positive behavioral changes); and
The court periodically reviews compliance and may extend, modify, or terminate the improvement period.

An improvement period is not a right; it is a discretionary tool. Continued noncompliance can lead to its termination and more severe dispositional outcomes.

C. “No Reasonable Likelihood that Conditions … Can Be Substantially Corrected in the Near Future”

This phrase is both legal and predictive. It requires the court to:

Evaluate the parent’s history and current behavior (e.g., compliance with the case plan, substance abuse, mental health, living conditions);
Consider whether, given this track record, meaningful improvement is plausible in a timeframe compatible with the child’s needs; and
Apply statutory guidance, such as failure to follow through with the family case plan (§ 49-4-604(d)(3)).

In less technical language, it is a forward-looking determination of whether the parent is realistically going to become a minimally safe and adequate caregiver in a time that is fair to the child.

D. “Clear Error” and “De Novo” Review

Clear error: An appellate court will overturn a factual finding only if it is left with a “definite and firm conviction” that a mistake has been made—even after viewing the evidence in the light most favorable to the prevailing party. This is a deferential standard, particularly with respect to credibility determinations and weighing of competing evidence.
De novo review: The appellate court reviews legal questions, such as interpretation of statutes or application of legal standards, without deference to the trial court’s conclusions.

In abuse and neglect appeals, this dual standard means that challenges to evidentiary sufficiency are difficult unless the record is sparse or the circuit court plainly misapplied the law.

E. “Less Restrictive Alternatives”

“Less restrictive alternatives” refer to dispositions short of full termination of parental rights, such as:

Returning the child under protective supervision;
Placing the child with a relative under guardianship;
Continuing or extending the improvement period; or
Long-term foster care.

While courts should consider these in appropriate cases, Kristin Y. and R.J.M. make clear that once a court finds no reasonable likelihood of correction and that termination is necessary for the child’s welfare, the law does not require further experimentation with less restrictive options.

VIII. Impact and Implications

A. For Future Abuse and Neglect Cases

Though styled as a memorandum decision, In re J.B. and A.B. reinforces several practical principles:

Nonparticipation Itself Is Powerful Evidence
Persistent failure to engage in services, maintain contact, or attend visits may, by itself, support a finding under § 49-4-604(d)(3). Parents cannot avoid termination by simply “disappearing” from the process.
Visitation Is a Key Indicator
Missed visits are not just technical breaches of a case plan. They are treated as substantive evidence of the parent’s level of commitment and potential to improve. This elevates the importance of attendance and consistent contact.
Stagnant or Worsening Housing Conditions Are Decisive
When the original basis for intervention is unfit housing, a parent’s failure to remedy those conditions—or allowing additional risk factors (drug activity, presence of other adults with terminated parental rights)—significantly undermines any claim of future rehabilitation.
Courts Need Not Indefinitely Prolong Improvement Periods
Even after initially allowing an improvement period to continue despite early noncompliance, a circuit court may later determine that continued efforts are futile and proceed to termination.

B. For DHS Practice

The opinion underscores the importance of:

Detailed documentation of service referrals, participation, and noncompliance;
Reporting the emotional effect of missed visitation on children;
Offering concrete services (e.g., utility restoration) and clearly instructing parents to notify DHS when improvements occur; and
Documenting efforts to reassess home conditions and noting parental noncooperation.

Such thorough documentation gave the circuit court—and, on review, the Supreme Court—sufficient grounds to support the “no reasonable likelihood” finding.

C. For Parents and Counsel

For parents involved in abuse and neglect proceedings, this case sends a stark message:

Engagement is critical. Merely being granted an improvement period does not protect against termination; continuous, earnest participation in services and visits is essential.
Nonattendance has consequences. Missing visits and ceasing contact with DHS will be interpreted as evidence of disinterest or inability to parent, not as neutral circumstances.
Evidence of progress must be brought to court. If there are genuine improvements (e.g., utilities restored, home cleaned, services completed), they must be documented and presented; silence and absence at disposition deprive the court of any basis to avoid termination.

For counsel, the decision illustrates the importance of:

Advising clients early and often about how noncompliance will be perceived;
Encouraging consistent contact and visitation; and
Ensuring any remedial steps are documented and presented at review and dispositional hearings.

D. For Children and Permanency

The decision reinforces that the legal system’s focus, especially at disposition, is on permanency and stability for the child, not on open-ended opportunities for parental rehabilitation. With the children’s permanency plan set as adoption in their current placements, the ruling clears the way for a stable, long-term home rather than indefinite foster care or recurrent litigation.

IX. Conclusion

In re J.B. and A.B. is a clear reaffirmation of West Virginia’s statutory and case law framework for termination of parental rights:

Persistent noncompliance with the family case plan—especially ending in discharge from services and cessation of contact—falls squarely within § 49-4-604(d)(3) as a basis for finding “no reasonable likelihood” of correction.
Missed visitation and lack of parental effort to maintain a relationship with children in out-of-home placement are significant indicators of whether the parent can meet minimal parenting standards.
When the court properly finds both no reasonable likelihood of correction and that termination is necessary for the child’s welfare, it may terminate parental rights without employing less restrictive alternatives, consistent with Kristin Y. and R.J.M..

While this decision does not announce new doctrine, it consolidates and applies existing principles in a fact pattern that is common in abuse and neglect practice: a parent who is initially given substantial opportunity to improve but ultimately disengages. It underscores that improvement periods are meaningful only to the extent that parents actively participate and demonstrate change, and it reaffirms that the child’s right to safety and permanency ultimately prevails when such participation is absent.