Reaffirmation: Parent’s Nonappearance and Noncompliance Defeat Improvement Period; Termination Proper Absent Reasonable Likelihood of Correction

Reaffirmation: Parent’s Nonappearance and Noncompliance Defeat Improvement Period; Termination Proper Absent Reasonable Likelihood of Correction

Introduction

In In re J.H., J.M., T.K., and R.K., No. 24-541 (W. Va. Sept. 30, 2025), the Supreme Court of Appeals of West Virginia affirmed a Randolph County circuit court order terminating Petitioner Mother M.K.’s parental rights to four children and denying her request for a post-adjudicatory improvement period. The decision is issued as a memorandum decision under Rule 21, without oral argument, signaling that the Court viewed the issues as controlled by settled law.

The case arises from allegations that the mother exposed the children to K.H., a previously terminated parent barred from contact, and engaged in substance abuse. Although the mother had succeeded in an earlier improvement period in a prior abuse and neglect proceeding, the Department of Human Services (DHS) alleged renewed endangerment through prohibited contact and drug use. The mother stipulated to neglect at adjudication but then failed to engage with services, missed hearings, and did not consistently drug screen or visit the children. At disposition, she was absent. The circuit court denied an improvement period and terminated parental rights, citing the children’s need for stability.

On appeal, the mother argued that termination was improper because she was not afforded an improvement period. The Supreme Court rejected that contention, emphasizing the parent’s burden to demonstrate a likelihood of full participation, the trial court’s broad discretion, and the statutory authorization to terminate when there is no reasonable likelihood of substantial correction in the near future and termination is necessary for the children’s welfare.

Summary of the Opinion

The Supreme Court affirmed the August 19, 2024 dispositional order that:

  • Denied the mother’s motion for a post-adjudicatory improvement period because she did not show she was likely to fully comply, given her failure to participate in drug screens and services, missed hearings, denial of substance abuse despite positive tests, and nonappearance at the dispositional hearing.
  • Terminated the mother’s parental rights upon findings that she failed to take advantage of services, effectively abandoned the proceedings, continued to test positive for substances, did not acknowledge her drug problem, and minimally visited the children, creating no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future; termination served the children’s need for stability and was in their best interests.

Although the mother’s appellate brief failed to cite governing authority as required by Rule 10(c)(7), the Court exercised discretion to reach the merits and affirm, while reminding litigants that noncompliant briefing risks sanctions under Rule 10(j) and the Court’s 2012 Administrative Order on deficient filings.

Analysis

Precedents and Authorities Cited

  • Standard of review: Syllabus point 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) — factual findings are reviewed for clear error; legal conclusions de novo.
  • Improvement periods are discretionary: In re M.M., 236 W. Va. 108, 778 S.E.2d 338 (2015) — circuit courts have discretion whether to grant a parent an improvement period.
  • Visitation as a proxy for parental engagement: In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) — the level of interest in visiting children while out of custody is a significant factor in assessing potential to improve to minimum parenting standards.
  • Termination without lesser alternatives: Syllabus point 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), quoting Syllabus point 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) — termination may be employed without intermediate, less restrictive alternatives when there is no reasonable likelihood of substantial correction and termination is necessary for the child’s welfare.
  • Statutory framework — improvement period: W. Va. Code § 49-4-610(2)(B) — a post-adjudicatory improvement period requires the parent to demonstrate that he or she is likely to fully comply with the terms.
  • Statutory framework — termination: W. Va. Code § 49-4-604(c)(6) — authorizes termination of parental rights when there is no reasonable likelihood the conditions of abuse or neglect can be substantially corrected in the near future and termination is necessary for the child’s welfare; § 49-4-604(d)(3) — “no reasonable likelihood” includes failure to respond to or follow through with a reasonable family case plan or other rehabilitative efforts.
  • Appellate briefing requirements: W. Va. R. App. P. 10(c)(7) (brief must contain argument with citations to authority) and Rule 10(j) (sanctions for noncompliance); Administrative Order (Dec. 10, 2012) (“Filings That Do Not Comply With the Rules of Appellate Procedure”) — stresses strict compliance and warns of sanctions for deficient briefs.

These authorities collectively frame a deferential appellate posture toward trial-level dispositional determinations, place the burden squarely on the parent to justify an improvement period through active engagement, and allow immediate termination when statutory predicates are met.

Legal Reasoning Applied by the Court

1) Denial of Post-Adjudicatory Improvement Period

The Court’s reasoning turns on the statutory requirement that a parent seeking a post-adjudicatory improvement period demonstrate a likelihood of full compliance. The record showed:

  • A history of exposing the children to K.H., a previously terminated parent barred from contact, despite his domestic violence history.
  • Substance abuse, including positive tests for methamphetamine, amphetamine, and marijuana.
  • Inconsistent participation in drug screens and services, including express admissions of noncompliance and denial of ongoing use despite recent positives.
  • Missed court hearings and nonappearance at the “most crucial” dispositional hearing, undermining her ability to establish likelihood of compliance.

Given these facts, the circuit court acted within its discretion to deny the improvement period. The Supreme Court underscored that improvement periods are not entitlements; they are tools conditioned on a parent’s proactive engagement. Where a parent fails to present concrete evidence of readiness and reliability (e.g., consistent screens, service participation, acknowledgment of the problem), the statutory threshold is not met.

2) Termination of Parental Rights

On termination, the Court’s analysis followed the statute:

  • No reasonable likelihood of correction: The mother did not respond to or follow through with the family case plan (W. Va. Code § 49-4-604(d)(3)), continuing to test positive for multiple substances and denying a drug problem.
  • Minimal visitation: The mother visited the children only once according to the guardian’s motion (and the record shows only two visits in the extended proceedings), which the Court flagged as a significant negative indicator under Katie S.
  • Necessity for the children’s welfare: The circuit court explicitly found the children required stability. With two children placed for adoption and two with a father on an improvement period, permanency considerations weighed heavily for swift, decisive relief.
  • No lesser alternatives required: Under Kristin Y. and R.J.M., termination can proceed without intermediate, less restrictive alternatives when the statutory “no reasonable likelihood” and welfare findings are made.

Under the deferential clear-error review of factual findings and de novo review of the statutory framework, the Supreme Court found no error.

Key Points About the Court’s Approach

  • Attendance matters: A parent’s nonappearance at the dispositional hearing weighs heavily against granting an improvement period because it prevents the parent from establishing the required likelihood of full compliance.
  • Acknowledgment of issues is foundational: Denial of substance abuse in the face of repeated positive drug screens undermines credibility and the statutory showing required for an improvement period.
  • Visitation is a barometer: Sparse visitation while the children are out of custody is a “significant factor” indicating limited potential to meet minimum parenting standards.
  • Documentation and service referrals are decisive: DHS’s record of missed drug screens, positive tests, and failed contacts supported both the denial of an improvement period and termination.
  • Appellate briefing rules are enforced: Although the Court reached the merits here, it emphasized that Rule 10(c)(7) requires citation to authority; noncompliance risks sanctions or dismissal under Rule 10(j).

Impact and Practice Implications

For Trial Courts

  • Courts may hold improvement period motions in abeyance pending demonstrable participation in services and drug screens; failure to produce such evidence justifies denial.
  • Express findings that the parent failed to follow the family case plan, denied substance issues, and missed hearings will support “no reasonable likelihood” findings at disposition.
  • Courts may proceed to termination without less restrictive alternatives when statutory predicates are met and stability demands it.

For Parents and Counsel

  • An improvement period is not automatic. A parent must actively prove likely full compliance by:
    • Consistently submitting to drug screens and services;
    • Attending all hearings, especially disposition;
    • Acknowledging the problem and articulating a concrete plan for treatment;
    • Maintaining regular, meaningful visitation.
  • Appellate briefs must cite relevant statutes and case law. Failure to do so violates Rule 10(c)(7) and can lead to denial of relief regardless of the merits.

For DHS and Guardians ad Litem

  • Thorough documentation of service referrals, drug-screen results, missed appointments, and visitation attempts is critical to support “no reasonable likelihood” and “best interests” findings.
  • Early motions for termination may be appropriate where prolonged noncompliance and minimal visitation signal that permanency should not be delayed.

Systemic Effects

  • The decision reinforces timely permanency by clarifying that courts need not prolong cases with improvement periods when the parent cannot meet the statutory threshold.
  • It underscores that prior success in an earlier improvement period does not insulate a parent from future termination if new neglect and noncompliance arise.
  • The continued emphasis on briefing compliance is a reminder that appellate outcomes can turn on adherence to procedural rules as much as substantive law.

Complex Concepts Simplified

  • Adjudication vs. Disposition: Adjudication decides whether abuse/neglect occurred (here, by stipulation). Disposition determines what to do next—reunification efforts, improvement periods, or termination.
  • Improvement Period (Post-Adjudicatory): A structured chance for a parent to correct issues after adjudication. It is granted only if the parent shows they are likely to fully comply with the terms (W. Va. Code § 49-4-610(2)(B)).
  • No Reasonable Likelihood of Correction: A statutory finding that the problems leading to removal cannot be substantially fixed in the near future, as when a parent fails to follow the family case plan or engage in rehabilitative services (W. Va. Code § 49-4-604(d)(3)).
  • Less Restrictive Alternatives: Options short of termination (e.g., custodial placement with ongoing services). When “no reasonable likelihood” exists and termination is necessary for the child’s welfare, courts may terminate without trying less restrictive steps first.
  • Guardian ad Litem (GAL): An attorney appointed to represent the children’s best interests throughout the proceedings.
  • Memorandum Decision (Rule 21): A streamlined decision without oral argument used when the law is settled and the facts are straightforward, as here.
  • Rule 10(c)(7) Briefing Requirement: Appellate briefs must cite relevant authority and apply it to the case; noncompliance can lead to sanctions or dismissal.

Conclusion

The Supreme Court’s memorandum decision in In re J.H., J.M., T.K., and R.K. is a clear reaffirmation of two core principles in West Virginia abuse and neglect jurisprudence:

  • Improvement periods are conditional and discretionary: A parent must demonstrate a current, credible likelihood of full compliance. Nonappearance at critical hearings, denial of substance abuse in the face of positive screens, poor service engagement, and minimal visitation will defeat the request.
  • Termination is appropriate without lesser alternatives when statutory criteria are met: If there is no reasonable likelihood of substantial correction in the near future and termination is necessary for the children’s welfare, courts should prioritize permanency and stability.

The decision also serves as an appellate practice reminder: compliance with Rule 10(c)(7) is mandatory. Although the Court reached the merits in this case, it reiterated that inadequate briefing risks serious sanctions. Practitioners should treat this case as both a substantive guide to improvement periods and termination standards, and a procedural cautionary tale on appellate advocacy.

Additional notes: The opinion references the restructuring of the former Department of Health and Human Resources into, among other entities, the Department of Human Services. That administrative change had no substantive effect on the legal standards applied here.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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