Nonparticipation Precludes Improvement Period: West Virginia Supreme Court Reaffirms Denial of Improvement Period and Termination Where Parent Fails to Engage, Despite Mental Health Claims

Introduction

In In re D.A. and R.A., No. 24-612 (W. Va. Sept. 10, 2025), the Supreme Court of Appeals of West Virginia affirmed a Mingo County circuit court order terminating a mother’s parental rights to two minor children. The case centers on chronic unsafe living conditions—extreme clutter, structural hazards, and insect infestation—persisting despite extensive services offered by the West Virginia Department of Human Services (DHS) both before and during the abuse-and-neglect proceedings. The mother, M.A., challenged two aspects of the circuit court’s ruling: (1) the denial of a post-adjudicatory improvement period and (2) the termination of her parental rights, arguing that her mental health should have altered the outcome.

The Court, proceeding by memorandum decision under Rule 21 without oral argument, rejected these claims. It held that the record supported the circuit court’s findings that the mother failed to demonstrate a likelihood of full participation in an improvement period and that there was no reasonable likelihood she could substantially correct the conditions of abuse and neglect in the near future. The decision underscores a recurring West Virginia principle: an improvement period is not automatic; it must be earned through concrete, timely demonstration of cooperation, and mental health concerns do not excuse nonparticipation in court-ordered services and evaluations.

Summary of the Opinion

The Supreme Court affirmed the October 1, 2024, dispositional order terminating M.A.’s parental rights to D.A. and R.A. The Court held:

Improvement period: Denial was proper because the mother failed to carry her statutory burden to show, by clear and convincing evidence, that she was likely to fully participate. Her minimal, late-stage efforts (e.g., ripping up carpet, purchasing lumber) and her absence from court proceedings, MDT meetings, and psychological evaluations did not satisfy West Virginia Code § 49-4-610(2)(B).
Termination: The circuit court’s findings were supported by the record. Multiple services over time—including those provided in 2022 before the petition—did not improve conditions, which in fact worsened. The mother failed to complete court-ordered psychological evaluations and minimally engaged with DHS. Under West Virginia Code § 49-4-604(d)(3) and (c)(6), termination was warranted because there was no reasonable likelihood she could substantially correct the conditions in the near future, and termination was necessary for the children’s welfare.
Mental health considerations: The circuit court did account for the mother’s mental health by ordering two evaluations (which she failed to attend) and appointing a guardian ad litem for her. Moreover, the mother herself testified that she was mentally capable and compliant with treatment at disposition. Thus, mental health, on this record, did not undermine the statutory findings supporting termination.

The Court applied the standard of review articulated in Syllabus Point 1 of In re Cecil T., reviewing factual findings for clear error and legal conclusions de novo, and found no error.

Analysis

Precedents Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 1) — Establishes the bifurcated standard of review: clear error for factual findings and de novo for legal conclusions in abuse-and-neglect appeals. The Court applied this framework to defer to the circuit court’s credibility and participation findings while reviewing statutory interpretations de novo.
In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002) — Confirms circuit courts have discretion to deny an improvement period when no improvement is likely. This principle directly supported the denial of a post-adjudicatory improvement period where the parent’s nonparticipation and pervasive inaction signaled that an improvement period would be futile.
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (Syl. Pt. 5), quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (Syl. Pt. 2) — Clarifies that termination of parental rights may be ordered without first utilizing less restrictive alternatives when the court finds there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future. The Court invoked this line of authority to uphold termination without additional remedial measures, given the sustained noncompliance and persistence of unsafe conditions.

Legal Reasoning

The Court’s reasoning proceeds along two statutory tracks: the threshold for granting an improvement period and the standard governing termination.

Improvement period (W. Va. Code § 49-4-610(2)(B)): The statute requires the parent to demonstrate, by clear and convincing evidence, a likelihood of full participation. The Court noted:
- The mother cited only her own dispositional testimony about partial home repairs and financial constraints.
- She offered no explanation for her prolonged failures to attend psychological evaluations (twice ordered, and twice scheduled by DHS), MDT meetings, or several court hearings.
- Given this record, the circuit court reasonably concluded she was unlikely to fully participate, justifying denial under In re Tonjia M.
Termination (W. Va. Code § 49-4-604(c)(6) and (d)(3)): Termination is authorized when (a) there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future, and (b) termination is necessary for the child’s welfare. Section 49-4-604(d)(3) specifically captures cases where the parent does not respond to or follow through with a reasonable family case plan or rehabilitative efforts, evidenced by continued unsafe conditions.
- Here, DHS provided months of services even before filing the petition (in 2022), and the family had a prior case in 2018 for similar concerns—yet the home conditions deteriorated.
- The mother showed minimal efforts to participate, maintained little to no contact with DHS, did not attend MDTs, and skipped ordered psychological evaluations.
- These facts supported the circuit court’s finding of no reasonable likelihood of correction in the near future; consequently, under In re Kristin Y./In re R.J.M., the court was not required to attempt less restrictive alternatives before terminating rights.
Mental health considerations: The mother argued that her mental health should have mitigated the outcome. The record, however, showed the circuit court actively engaged with this issue by ordering two psychological evaluations and appointing a guardian ad litem for the mother following a mental hygiene proceeding. The mother’s failure to attend the evaluations undermined any claim that overlooked mental health factors caused her noncompliance. At disposition, she claimed to be stable and compliant with treatment. Under these circumstances, mental health did not negate the statutory predicates for termination.

Impact

This memorandum decision reinforces several practical and doctrinal points for West Virginia abuse-and-neglect proceedings:

Participation is the linchpin for an improvement period: Parents must marshal concrete, timely evidence of cooperation—attendance at evaluations and MDTs, communication with DHS, compliance with case plans—to meet the “clear and convincing” likelihood-of-participation standard. Late-stage, partial efforts are typically insufficient.
Sustained noncompliance triggers § 49-4-604(d)(3): When the parent’s nonparticipation is “evidenced by the continuation” of dangerous conditions, courts may find no reasonable likelihood of correction in the near future and proceed directly to termination without additional lesser alternatives.
Mental health claims require engagement, not abstention: Courts will consider mental health, and may order evaluations and appoint a guardian ad litem for the parent. But unexcused failures to attend ordered evaluations and participate in services will vitiate mental-health-based arguments against termination.
Deference to circuit court fact-finding remains robust: Under Cecil T., appellate courts defer to circuit courts’ credibility calls and participation findings, placing a premium on developing a full evidentiary record below.
Repeat conditions heighten risk of termination: A prior abuse-and-neglect case for similar concerns, followed by deterioration despite additional services, strongly supports termination under § 49-4-604.
Permanency for children is prioritized: With the father deceased and a familial adoptive placement available, the Court’s affirmance underscores the system’s emphasis on timely permanency when a parent fails to engage meaningfully.

Complex Concepts Simplified

Improvement period: A court-ordered span of time in which a parent works on a case plan with DHS to correct conditions of abuse or neglect. It is not automatic; the parent must prove, by clear and convincing evidence, that they are likely to fully participate.
Clear and convincing evidence: A medium-high evidentiary standard requiring proof that is highly and substantially more likely to be true than not—stronger than a preponderance, weaker than beyond a reasonable doubt.
No reasonable likelihood of correction in the near future: A statutory finding that, despite services, the parent is unlikely to fix the conditions of abuse/neglect soon. One indicator is persistent noncompliance with the case plan, resulting in continued unsafe conditions.
Multidisciplinary Team (MDT): A collaborative group (often including DHS, service providers, guardians ad litem, and counsel) that develops and monitors the family’s case plan; attendance and participation are critical to demonstrating engagement.
Guardian ad litem (GAL) for the parent: While GALs typically represent the child’s interests, courts may appoint a GAL for a parent in certain circumstances (e.g., competency concerns) to protect the parent’s interests during proceedings.
Mental hygiene proceeding: A separate court process addressing mental health concerns, potentially including evaluation or hospitalization. Its existence may prompt safeguards (like appointing a GAL) but does not excuse noncompliance in the abuse-and-neglect case.
Adjudicatory vs. dispositional hearings: At adjudication, the court determines whether abuse/neglect occurred. At disposition, the court decides the appropriate remedy (e.g., improvement period, termination) based on the parent’s response to services and the child’s best interests.
Memorandum decision under Rule 21: A streamlined appellate disposition used when the Court concludes the case does not warrant oral argument and can be resolved on the written record. The decision applies existing law to the facts presented.

Procedural Timeline and Key Facts

2018: Prior abuse-and-neglect case involving D.A. for similar unsafe living conditions; parental rights retained.
2022: DHS provides months of in-home services to address deplorable conditions; CPS reports noncompliance and deterioration.
October 2023: DHS files the petition alleging abuse/neglect due to unsafe living conditions; father is deceased.
November 2023 (Preliminary): Mother absent; counsel present; probable cause found; court orders psychological, parenting, and substance-abuse evaluations.
February 2024 (Adjudication): Mother absent; court takes judicial notice of prior testimony and adjudicates abuse/neglect by clear and convincing evidence; orders psychological evaluation again.
July 2, 2024: Mother files a general response and moves for a post-adjudicatory improvement period; denies abuse/neglect but admits clutter.
Mid-2024: Mental hygiene proceeding initiated; court appoints a GAL for the mother and reschedules disposition.
August 2024 (Disposition): Mother appears; testifies to partial home repairs, grief-related issues, and current treatment compliance; DHS presents extensive evidence of noncompliance and ongoing unsafe conditions; court finds minimal engagement, no reasonable likelihood of correction, and that termination serves the children’s best interests.
October 1, 2024: Circuit court terminates parental rights; permanency plan: adoption in the current familial placement.
September 10, 2025: Supreme Court affirms by memorandum decision.

Practice Takeaways

For parents and counsel: To secure an improvement period, build a record of sustained compliance: attend every evaluation and MDT meeting, maintain regular DHS contact, produce verifiable documentation (photos, invoices, provider letters), and demonstrate measurable environmental change before disposition.
For DHS and GALs: Document service offerings, scheduling efforts (including missed evaluations), communications, and before/after condition assessments. Detail prior case histories to show patterns of noncompliance and persistent risk.
For courts: When mental health is raised, ensure appropriate safeguards (e.g., evaluations, GAL appointment). Still, make clear findings when nonparticipation persists, linking statutory standards to the evidentiary record.

Conclusion

In re D.A. and R.A. reinforces core tenets of West Virginia’s child welfare law: an improvement period is a privilege tied to demonstrable, timely engagement; persistent noncompliance, especially across multiple interventions and cases, supports a finding that there is no reasonable likelihood of correction in the near future; and termination may be ordered without lesser alternatives when the statutory predicates are met. Mental health concerns are considered, but they do not excuse a parent’s failure to participate in court-ordered services and evaluations.

Applying established precedent and statutes—§ 49-4-610 and § 49-4-604—the Court found no clear error in the circuit court’s fact-finding and no legal error in its conclusions. The decision underscores the judiciary’s emphasis on child safety and permanency, particularly when, as here, extensive services have been offered, conditions have persisted or worsened, and the parent has not meaningfully engaged in the remedial process.