Post-Termination Visitation in West Virginia: A Child’s Best-Interest Right That Cannot Be Delegated to Custodians
Introduction
In re M.C. (No. 25-392) is a memorandum decision of the Supreme Court of Appeals of West Virginia
affirming the Circuit Court of Nicholas County’s March 31, 2025 dispositional order terminating Mother K.H.’s
parental and custodial rights to M.C. and denying her request for post-termination visitation.
The case arose from an October 2024 abuse and neglect petition filed by the West Virginia Department of Human
Services (“DHS”) alleging severe parental drug abuse. The key appellate issue was narrow: whether the circuit
court erred by denying post-termination visitation, especially in light of the child’s stated desire to maintain
contact.
Summary of the Opinion
The Court affirmed. Applying the best-interest framework for post-termination contact, it held that the circuit
court did not err in finding continued visitation would be detrimental and not in M.C.’s best interests given the
parents’ ongoing and extreme drug use and total noncompliance with the improvement period.
The Court also rejected the notion—raised below by the father’s counsel—that post-termination contact could be
left to the discretion of the adoptive placement. Post-termination contact, if ordered, is not a parental entitlement
and cannot be delegated to a custodian to grant or withhold.
Analysis
Precedents Cited
In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
The Court began by restating the appellate standard of review for abuse and neglect proceedings:
findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. This framing mattered
because the mother challenged only the post-termination visitation ruling, which is a best-interest determination
heavily dependent on the circuit court’s factual assessments of risk and detriment.
In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995)
This decision supplies the foundational principle that even after termination, a court may, “in appropriate cases,”
consider whether continued visitation or contact is in the child’s best interest. The opinion highlights the
factors: whether a close emotional bond exists, the child’s wishes (when of sufficient maturity), and—critically—
whether evidence shows contact would not be detrimental and would affirmatively serve the child’s best interests.
In re M.C. also relied on In re Christina L. for a distinct and controlling limitation: post-termination
visitation is “not as a right of the parent, but rather as a right of the child.” The Court used this to explain why a
circuit court cannot “leave discretion up to the adoptive placement” as to whether contact occurs; the judiciary must
decide and structure it when it is ordered.
In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002)
The Court quoted and applied the syllabus-point adoption of In re Christina L. as a governing statement of
West Virginia law on post-termination contact. By treating this syllabus point as the controlling standard,
In re M.C. positions the denial of visitation as proper where the evidence shows detriment—regardless of
sympathetic circumstances or a child’s generalized preference for continued contact.
In re K.S., 246 W. Va. 517, 874 S.E.2d 319 (2022)
The Court reinforced the non-delegation principle by analogy: in In re K.S. the Court held that children’s
post-termination visitation rights “cannot be held hostage” by third parties (there, biological fathers).
In re M.C. extends that logic to adoptive or custodial placements: if post-termination contact is appropriate,
it cannot be rendered illusory by placing unilateral control in a custodian’s hands.
Legal Reasoning
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The court identified the correct legal test:
post-termination contact is permissible only when supported by evidence that it is not detrimental and is in the
child’s best interests (not merely desired by the child or parent).
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The Court rejected a discretionary, custodian-controlled model of contact:
because post-termination visitation, when ordered, is treated as a child-centered right, the circuit court could not
properly “leave discretion up to the adoptive placement.” The circuit court must decide whether contact is in the
child’s best interests and, if so, define its terms rather than outsource the decision.
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The best-interest finding was supported by the record:
the parents tested positive for multiple substances, failed to participate meaningfully in the improvement period,
did not appear for key hearings, did not corroborate claimed medical barriers with records, and had no visits during
the case due to noncompliance. The circuit court reasonably treated the “open wounds” as a symptom and consequence of
ongoing drug abuse, not as an independent justification warranting continued contact.
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The child’s wishes did not control:
while the guardian reported the child did not want termination and wished to maintain contact, the circuit court
found continued contact not in his best interests. The Supreme Court agreed, emphasizing detriment and safety over
preference. The Court also noted the child was nine and that, absent a finding he was “otherwise of an age of
discretion,” the circuit court was not statutorily required to consider his wishes at disposition under
W. Va. Code § 49-4-604(c)(6)(C).
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Speculation about future improvement was insufficient:
the mother relied on the guardian’s suggestion that contact could be beneficial if the mother “got [herself]
together.” The Court found this inherently conceded that, at the time of the ruling, contact would be detrimental,
and therefore could not justify post-termination visitation.
Impact
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Reinforcement of non-delegation: The decision underscores that post-termination contact—if ordered—
must be grounded in a judicial best-interest determination and cannot be made contingent upon the whims, preferences,
or leverage of custodians or prospective adoptive placements.
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Evidence of detriment remains decisive: Even where a child expresses a desire for contact, ongoing
severe substance abuse and demonstrated noncompliance can justify denial where the circuit court finds detriment.
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Practical guidance for litigants: Parties seeking post-termination contact must develop evidence on
the In re Daniel D./In re Christina L. factors—bond, maturity and wishes, and (most importantly)
non-detriment and best interests—rather than relying on hopeful future change.
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Procedural alignment with evolving standards: The Court noted that after the circuit court’s order,
it provisionally amended Rule 15(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings
to “more clearly articulate and adopt appropriate standards” for post-termination visitation, signaling heightened
attention to consistent, child-centered handling of such requests.
Complex Concepts Simplified
- Improvement period
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A court-supervised opportunity for a parent in an abuse and neglect case to remedy problems (e.g., addiction) through
services and compliance. Failure can lead to revocation and termination.
- Adjudication vs. disposition
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Adjudication decides whether abuse/neglect occurred. Disposition determines the outcome (services, placement,
or termination of parental rights).
- Post-termination visitation
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Contact between a child and a parent after the parent’s rights are terminated. It is exceptional, not automatic, and
turns on whether contact is proven beneficial and not harmful to the child.
- “Right of the child” (not the parent)
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If post-termination contact is ordered, it is because it serves the child’s welfare—not because a parent retains an
entitlement after termination. That is why a court cannot simply delegate the decision to a custodian.
- Standards of review: clear error and de novo
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“Clear error” gives deference to the trial court’s factual findings unless plainly wrong. “De novo” means the
appellate court reviews legal conclusions independently.
- “Age of discretion”
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A legal concept used to decide when a child’s wishes must be considered. The opinion noted that at age nine, and
without a court finding of “age of discretion,” the circuit court had no statutory obligation to weigh the child’s
preferences at disposition under W. Va. Code § 49-4-604(c)(6)(C).
Conclusion
In re M.C. affirms a strict, child-centered approach to post-termination visitation: it may be ordered only
when proven to be non-detrimental and in the child’s best interests, and it cannot be left to the discretion of an
adoptive placement or custodian. The decision emphasizes that a child’s expressed wish for contact does not override
evidence of ongoing parental substance abuse and risk of harm, and it reinforces the judiciary’s responsibility to
make and structure any post-termination contact determination.