Prior Success Does Not Guarantee Another Chance: Rapid Recurrence and Non-Acknowledgment Justify Denial of a New Improvement Period and Termination

Case: In re R.D., P.D., and L.M., No. 24-593 (Kanawha County CC-20-2024-JA-135, -136, -137)

Court: Supreme Court of Appeals of West Virginia

Date: September 30, 2025

Disposition: Circuit court order terminating parental rights affirmed (Rule 21 memorandum decision)

Introduction

This abuse and neglect appeal asked whether a parent—who had previously completed an improvement period, regained custody, and then quickly relapsed into the same unsafe conditions—was entitled to a new post-adjudicatory improvement period and whether termination was premature given the availability of “less restrictive alternatives,” such as legal guardianship. Petitioner Mother S.M. contested the Kanawha County Circuit Court’s denial of a post-adjudicatory improvement period and the termination of her parental rights to children R.D., P.D., and L.M.

The Department of Human Services (DHS) alleged that, only weeks after dismissal of a prior abuse and neglect case in which the mother had been reunified, the home again contained significant hazards (open gasoline containers, knives, drug paraphernalia) accessible to the children and that the mother allowed contact with the previously terminated father. The circuit court found the mother’s testimony evasive and not credible, adjudicated her as an abusing/neglecting parent, denied a new improvement period, and terminated parental rights. On review, the Supreme Court affirmed, concluding that the parent failed to demonstrate a likelihood of meaningful participation in services and that termination was warranted without first employing less restrictive alternatives.

Summary of the Opinion

The Supreme Court of Appeals affirmed the circuit court’s denial of a post-adjudicatory improvement period and termination of the mother’s parental rights. Key holdings include:

• A parent seeking a post-adjudicatory improvement period must, by clear and convincing evidence, demonstrate a likelihood to fully participate (W. Va. Code § 49-4-610(2)(B)). The mother did not meet this burden, given missed visits, poor engagement, minimization of hazards, and lack of acknowledgment.
• Failure to acknowledge the core problems makes improvement efforts futile and justifies denial of an improvement period (In re Timber M., quoting In re Charity H.).
• Credibility determinations are for the circuit court and will not be second-guessed on appeal (Michael D.C. v. Wanda L.C.).
• Where there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and termination is necessary for the child’s welfare, the court may terminate parental rights without resorting to less restrictive alternatives (Syl. Pt. 5, In re Kristin Y.; W. Va. Code § 49-4-604(c)(6)).
• Arguments insufficiently developed on appeal—such as the mother’s request for post-termination visitation—are deemed waived (State v. Kaufman, quoting United States v. Dunkel).

Analysis

Precedents and Authorities Cited

• In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): Establishes the standard of review in abuse and neglect appeals—factual findings are reviewed for clear error; legal conclusions are reviewed de novo. The Court applied this framework and deferred to the circuit court’s factual findings, including credibility assessments.
• W. Va. Code § 49-4-610(2)(B): A post-adjudicatory improvement period requires the parent to demonstrate by clear and convincing evidence that they are likely to fully participate. This burden rests with the parent; it is not presumed. The Court emphasized that missed visits, minimization, and evasiveness undercut the required showing.
• In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013), quoting In re Charity H., 215 W. Va. 208, 599 S.E.2d 631 (2004): The “acknowledgment” principle: treatment cannot work until the parent recognizes the problem. Failure to acknowledge makes services futile “at the child’s expense.” The Court relied on this to affirm the denial of a new improvement period where conditions reappeared and acknowledgment was lacking.
• Michael D.C. v. Wanda L.C., 201 W. Va. 381, 497 S.E.2d 531 (1997): Appellate courts will not second-guess trial-level credibility determinations. The circuit court expressly found the mother “evasive and not credible,” which foreclosed arguments premised on an alternative reading of the same testimony.
• In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002): Circuit courts have discretion to deny improvement periods when “no improvement is likely.” The Supreme Court cited Tonjia M. to reinforce that, even where some participation occurs, courts may deny an improvement period if the likelihood of actual improvement is not shown.
• W. Va. Code § 49-4-604(c)(6): Authorizes termination upon findings that there is no reasonable likelihood of substantial correction in the near future and termination is necessary for the child’s welfare. The circuit court made both findings; the Supreme Court affirmed.
• Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), quoting Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980): Confirms that, once the statutory findings are made, termination may proceed “without the use of intervening less restrictive alternatives.” This directly answered the mother’s argument that legal guardianship should have been tried first.
• In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025): Reinforces that appellate courts do not reweigh evidence or make credibility determinations. The Court invoked this to reject the mother’s invitation to revisit the factual record.
• State v. Kaufman, 227 W. Va. 537, 711 S.E.2d 607 (2011), quoting United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991): Illustrates the rule that perfunctory, undeveloped assignments of error are waived; the Court declined to reach the mother’s cursory post-termination visitation request.

Legal Reasoning

The Court’s reasoning proceeded in two principal steps—first, whether the mother was entitled to a post-adjudicatory improvement period; second, whether termination was warranted without resorting to less restrictive alternatives.

1) Denial of a post-adjudicatory improvement period

• Burden and standard: Under § 49-4-610(2)(B), a parent must prove, by clear and convincing evidence, a likelihood of full participation. This is a demanding standard directed at prospects for meaningful improvement, not mere nominal attendance.
• Application to the record: Although the mother had previously completed an improvement period in 2022, the 2024 record showed:
  • Missed supervised visits without communication;
  • Observed deficits in parenting skills;
  • Minimization of safety hazards later confirmed by photographs;
  • Evasive testimony and lack of acknowledgment of core issues, including contact with the previously terminated father.
  Collectively, these facts showed she had not internalized the lessons from prior services and was unlikely to fully and effectively participate in a new round.
• Doctrinal anchor—acknowledgment and futility: Citing Timber M./Charity H., the Court reiterated that services cannot succeed unless the parent recognizes the underlying problem. The mother’s refusal to candidly acknowledge recurring hazards made further services “an exercise in futility at the child's expense.”
• Deference to credibility determinations: The circuit court found the mother “evasive and not credible.” Under Michael D.C. and In re D.S., the Supreme Court declined to reweigh credibility, which was pivotal to upholding the denial of an improvement period.
• Discretion to deny: Tonjia M. confirms circuit court discretion to deny improvement periods where improvement is unlikely. The rapid recurrence of identical conditions soon after case dismissal strongly evidenced unlikelihood of improvement.

2) Termination without less restrictive alternatives

• Statutory findings: The circuit court found no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future and that termination was necessary for the children’s welfare (W. Va. Code § 49-4-604(c)(6)). The Supreme Court affirmed those findings as supported by the record.
• Guardianship vs. termination: The mother urged a legal guardianship as a less restrictive option. The Court applied Kristin Y./R.J.M., making clear that once the statutory predicates for termination are met, the circuit court may terminate parental rights “without the use of intervening less restrictive alternatives.”
• Evidence of necessity for welfare: DHS evidence included the children’s significant improvement upon removal and the reemergence of hazardous in-home conditions. Those facts supported the necessity prong.
• Standard of review limits: To the extent the mother invited the Supreme Court to reweigh the competing inferences, In re D.S. foreclosed that approach.

3) Waiver of undeveloped appellate issues

• The mother’s request for post-termination visitation was not supported by legal authority or developed argument. Applying the Kaufman/Dunkel principle, the Court refused to address it.

Impact and Practice Implications

Although issued as a Rule 21 memorandum decision, the Court’s analysis offers practical, clarifying guidance in abuse and neglect litigation:

• No entitlement to “second” improvement periods: Previous success in an improvement period—and even recent reunification—does not entitle a parent to a new improvement period when the same dangerous conditions rapidly reappear. Courts evaluate the parent’s current likelihood of full participation and meaningful change, not past compliance alone.
• Recurrence as powerful evidence of futility: Swift relapse into identical hazards after case dismissal is strong evidence that the problems were not internalized and that additional services would be futile. Documented recurrence can decisively support findings of “no reasonable likelihood” and denial of an improvement period.
• Acknowledgment remains a gatekeeping concept: The Court again centers “acknowledgment” as a precondition to treatment efficacy. Parents who minimize, deflect, or deny critical safety issues will face steep odds in securing new improvement periods.
• Less restrictive alternatives are not mandatory: When the statute’s termination predicates are met, courts may proceed directly to termination without first attempting guardianship or other alternatives. Practitioners should frame or resist “less restrictive alternative” arguments with Kristin Y. and § 49-4-604(c)(6) in mind.
• Trial record is decisive; credibility is king: Appellate courts will not revisit credibility calls or reweigh evidence. Parties must build a robust trial record—e.g., photographs, visit logs, service participation, measurable child well-being outcomes—because appellate relief is limited absent clear error.
• Compliance with court orders about contact matters: Allowing contact between children and a parent whose rights have been terminated is not just a technical violation; it evidences poor judgment and undermines trust in parental protective capacities, supporting findings of non-acknowledgment and risk.
• Appellate briefing standards: Requests such as post-termination visitation must be fully briefed with citation to authority. Per Kaufman/Dunkel, skeletal assertions will be disregarded.

Complex Concepts Simplified

• Improvement period: A court-supervised period during which a parent receives services (e.g., parenting classes, drug screening, visitation) to correct conditions of abuse or neglect. A post-adjudicatory improvement period occurs after the court has adjudicated the parent as abusing/neglecting. The parent must prove, by clear and convincing evidence, that they are likely to fully participate and benefit.
• Clear and convincing evidence: A heightened proof standard—more than “more likely than not” but less than “beyond a reasonable doubt.” It requires a firm belief or conviction in the truth of the allegations.
• Acknowledgment principle: Courts look for genuine recognition of the problem. Without honest acknowledgment, services are deemed ineffective, and improvement periods may be denied to avoid futile delays harming the child.
• No reasonable likelihood of correction: A statutory finding that, given the circumstances and the parent’s response to services, the problems cannot be substantially remedied in the near future. This finding, coupled with necessity for the child’s welfare, authorizes termination.
• Less restrictive alternatives: Options short of terminating rights (e.g., legal guardianship). Once statutory grounds for termination are met, courts are not obligated to try these alternatives first.
• Standard of review on appeal: Factual findings are reviewed for clear error (highly deferential), and legal issues are reviewed de novo. Appellate courts do not reweigh evidence or reassess witness credibility.
• Memorandum decision (Rule 21): A streamlined disposition used when the law is settled and oral argument is unnecessary. While concise, these decisions apply and reinforce governing principles.

Conclusion

In re R.D., P.D., and L.M. reinforces a pragmatic, child-centered framework: when a parent quickly relapses into the very hazards that previously triggered state intervention—and fails to candidly acknowledge those problems—courts may deny a new improvement period and proceed to termination if statutory findings are met. The decision underscores three pillars of West Virginia abuse and neglect law:

• Parents bear the burden to show, clearly and convincingly, that a new improvement period would be meaningful—not merely nominal—and acknowledgment is the threshold to treatment.
• Trial courts’ credibility determinations and assessments of futility will be respected on appeal.
• Once no reasonable likelihood of correction in the near future is found and termination is necessary for the child’s welfare, courts need not experiment with less restrictive alternatives.

For practitioners, the case is a reminder to focus the record on acknowledgment (or the lack thereof), the durability of change post-services, and concrete metrics of child well-being. For parents, it is a cautionary lesson that prior success does not guarantee a renewed opportunity if old dangers return and remain unowned. Ultimately, the Court’s analysis aligns with the overarching statutory aim—swift, stable permanency that prioritizes the child’s safety and welfare.