Participation Without Meaningful Improvement Does Not Require an Improvement Period or a Less Restrictive Disposition

Introduction

In In re B.S., G.S., R.S., and S.S., the Supreme Court of Appeals of West Virginia affirmed an order terminating S.B.’s parental rights to four children. The case arose from physical abuse directed at S.S., the petitioner’s stepchild, and from the resulting exposure of the other children to an abusive home environment.

The appeal presented two principal questions: whether the circuit court improperly denied the mother a post-adjudicatory improvement period, and whether it should have selected a less restrictive disposition instead of terminating her parental rights. The Supreme Court concluded that the mother’s incomplete participation in services, failure to engage in therapy, missed visitation, continued volatile relationship with the children’s father, and minimal benefit from services supported both decisions.

The central lesson is that mere attendance at some services does not establish entitlement to an improvement period. A parent must demonstrate a likelihood of full and meaningful participation, and termination may occur without intermediate alternatives when the conditions of abuse or neglect are not reasonably likely to be corrected in the near future.

Factual and Procedural Background

The West Virginia Department of Human Services filed an abuse-and-neglect petition in September 2023. It alleged that S.B. forcefully grabbed S.S. by the back of his neck and placed her hand over his mouth to stop him from screaming. S.S. reported that the petitioner yelled at him, treated him roughly, physically prevented him from crying, and made him feel unsafe. Other children stated that the petitioner physically disciplined or “fought” with S.S. while not treating them in the same manner.

At adjudication, the petitioner admitted grabbing S.S. by the neck but denied intending to injure him. Evidence indicated that S.S. had bruises in different stages of healing and was the particular target of physical abuse. The circuit court adjudicated the petitioner and the father as abusing and neglecting parents. Although the abuse was directed primarily at S.S., the court also found the other children abused and neglected because they lived in the home and were exposed to the conduct.

During the dispositional phase, the parents received supervised visitation and services. The evidence nevertheless showed that:

• the petitioner missed multiple supervised visits;
• she failed to participate in recommended intensive outpatient therapy;
• she remained in a volatile relationship with the father despite recommendations that they separate;
• she concealed or misrepresented that she continued living with him;
• the parents yelled at, chased, and threw objects at each other;
• the children’s behavior worsened after visitation began;
• the parents repeatedly failed to respond to R.S.’s emotional distress during visits; and
• service providers observed little meaningful improvement and did not consider reunification safe.

The circuit court found no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future. It also found termination necessary for the children’s welfare and terminated the parental rights of all parents involved.

Summary of the Opinion

The Supreme Court affirmed the November 7, 2025 dispositional order. Applying West Virginia Code § 49-4-610(2)(B), it held that the petitioner had not proved by clear and convincing evidence that she was likely to participate fully in a post-adjudicatory improvement period.

The Court also upheld termination under West Virginia Code §§ 49-4-604(c)(6) and 49-4-604(d)(3). Her failure to follow through with visitation, therapy, parenting recommendations, and efforts to address domestic instability supported the finding that the conditions could not be substantially corrected. Because termination was also found necessary for the children’s welfare, the circuit court was not required to impose a less restrictive alternative first.

Analysis

Standard of Appellate Review

Relying on syllabus point 1 of In re K.S., the Court applied three distinct standards:

• Substantive rulings: reviewed for abuse of discretion;
• Factual findings: reviewed for clear error; and
• Legal questions: reviewed de novo.

This framework gave substantial deference to the circuit court’s assessment of witness credibility, parental progress, and the safety risks facing the children.

Precedents Cited

In re K.S.

In re K.S. supplied the governing appellate standard. Its importance lies in separating factual, discretionary, and purely legal determinations. The circuit court’s findings concerning missed visits, domestic volatility, nonparticipation in therapy, and lack of progress could not be reversed merely because the appellate court might have weighed the evidence differently. Reversal required clear error or an abuse of discretion, neither of which was shown.

In re M.M.

In re M.M. established that West Virginia circuit courts possess discretion in deciding whether to grant an improvement period. An improvement period is therefore not automatic after adjudication. Even where a parent has participated in some services, the court must determine whether the evidence demonstrates a genuine likelihood of full participation and improvement.

The Court applied that principle by distinguishing partial attendance from meaningful compliance. The petitioner’s failure to complete therapy, attend every visit, follow parenting recommendations, and address the unstable relationship defeated her claim of likely full participation.

In re Tonjia M.

In re Tonjia M. reinforces the authority to deny an improvement period when improvement is unlikely. This precedent directed attention not merely to a parent’s stated willingness, but to the parent’s demonstrated conduct. The petitioner had received services for a substantial period yet continued the behaviors and circumstances that prevented safe reunification.

In re Kristin Y.

In re Kristin Y. states that termination may be imposed without first using less restrictive alternatives when there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected. The decision directly answered the petitioner’s contention that the circuit court should have adopted an intermediate disposition.

Once the statutory findings were made—both inability to correct the conditions in the near future and necessity for the children’s welfare—the court was not obligated to delay permanency through another alternative.

In re R.J.M.

In re Kristin Y. quoted syllabus point 2 of In re R.J.M., the foundational authority for permitting immediate termination where correction is not reasonably likely. In re R.J.M. reflects the principle that child-welfare proceedings do not require courts to exhaust every lesser option when delay would conflict with the child’s need for safety and permanence.

Legal Reasoning

1. No entitlement to an improvement period

West Virginia Code § 49-4-610(2)(B) requires a parent seeking a post-adjudicatory improvement period to demonstrate, by clear and convincing evidence, that the parent is likely to participate fully. The burden rests on the parent.

The petitioner could point to attendance at some services, but the Court treated participation as a qualitative as well as quantitative inquiry. The relevant evidence showed missed visitation, failure to begin intensive therapy, disregard of DHS recommendations, dishonesty about cohabitation, and continued exposure to a volatile domestic relationship. The circuit court was therefore entitled to conclude that further services were unlikely to produce timely improvement.

2. Lack of meaningful benefit from services

The decision implicitly distinguishes between receiving services and benefiting from them. A parent cannot establish rehabilitation merely by appearing at appointments. Courts may examine whether the parent has applied the instruction, reduced safety risks, responded appropriately to the children, and changed the circumstances that produced the abuse or neglect.

Here, the children’s worsening behavior, the parents’ failure to comfort R.S. during emotional breakdowns, and the continued domestic instability showed that services had not translated into safer parenting.

3. Statutory basis for termination

West Virginia Code § 49-4-604(d)(3) identifies failure to respond to or follow through with a reasonable family case plan or rehabilitative effort as a circumstance demonstrating that the conditions of abuse and neglect are not reasonably likely to be substantially corrected.

West Virginia Code § 49-4-604(c)(6) then permits termination when two conditions are met:

1. there is no reasonable likelihood that the conditions can be substantially corrected in the near future; and
2. termination is necessary for the child’s welfare.

Both findings were made. Significantly, the petitioner did not challenge the separate finding that termination served the children’s best interests.

4. Less restrictive alternatives were not required

The Court rejected the idea that a circuit court must always attempt guardianship, continued services, or another intermediate arrangement before termination. The governing inquiry is not whether some lesser option can be imagined, but whether the parent can correct the conditions promptly enough to protect the children’s welfare. The prolonged case history and limited progress supported immediate termination.

Potential Impact

• Attendance alone is insufficient: Future courts may rely on the decision when a parent technically participates in services but fails to demonstrate behavioral change.
• Domestic instability is relevant: A parent’s continued involvement in a volatile relationship may support denial of reunification even when the original petition centered on direct physical abuse.
• Credibility matters: Misrepresentations to DHS or providers about living arrangements may undermine a parent’s claim that full future participation is likely.
• Children’s reactions are probative: Emotional deterioration during visitation may be considered when assessing whether continued contact or reunification serves the children’s welfare.
• Permanency need not await futile services: Courts may proceed to termination without exhausting lesser dispositions when statutory findings establish that timely correction is unlikely.

Because the Court issued a memorandum decision under West Virginia Rule of Appellate Procedure 21, the opinion primarily applies established statutory and precedential rules rather than announcing a wholly new doctrine. It nevertheless provides a concrete illustration of how those rules apply when participation has produced little benefit.

Complex Concepts Simplified

Adjudication

The stage at which the court determines whether a child was abused or neglected and whether a parent is legally responsible.

Disposition

The later stage at which the court decides what remedy is appropriate, such as reunification efforts, guardianship, or termination of parental rights.

Post-adjudicatory improvement period

A court-supervised opportunity, after abuse or neglect has been established, for a parent to correct the problems preventing safe reunification.

Clear and convincing evidence

A demanding level of proof requiring a firm belief that the asserted fact is true, though it is less demanding than proof beyond a reasonable doubt.

No reasonable likelihood of substantial correction

A finding that the parent is unlikely to remedy the relevant safety problems soon enough to permit safe reunification.

Less restrictive dispositional alternative

An option short of termination, such as continued services or another custodial arrangement. Such an option is not required when correction is unlikely and termination is necessary for the child’s welfare.

Abuse of discretion

A deferential standard under which an appellate court overturns a decision only when the lower court acted unreasonably or outside the permissible range of choices.

Clear error

A standard permitting reversal of a factual finding only when the appellate court is firmly convinced that a mistake occurred.

De novo review

Independent appellate review of a legal question without deference to the lower court’s legal conclusion.

Conclusion

In re B.S., G.S., R.S., and S.S. confirms that an improvement period depends on demonstrated prospects for full and effective participation, not partial attendance or professed willingness. It also confirms that termination may occur without an intervening lesser disposition when a parent fails to follow through with rehabilitative measures, the underlying dangers remain unresolved, and termination is necessary for the children’s welfare.

The decision emphasizes practical improvement over procedural participation and places the children’s safety, stability, and timely permanency at the center of the dispositional analysis.