Reaffirming Denial of Improvement Periods and Termination Where Parent Fails to Engage: West Virginia High Court’s Memorandum Decision in In re J.H., J.M., T.K., and R.K.

Reaffirming Denial of Improvement Periods and Termination Where Parent Fails to Engage: West Virginia High Court’s Memorandum Decision in In re J.H., J.M., T.K., and R.K.

Introduction

This commentary analyzes the Supreme Court of Appeals of West Virginia’s memorandum decision in In re J.H., J.M., T.K., and R.K., No. 24-541 (Sept. 30, 2025), affirming the Randolph County Circuit Court’s August 19, 2024 order terminating the parental rights of petitioner mother M.K. The case arises from abuse and neglect proceedings in which the Department of Human Services (DHS) alleged that the mother exposed the children to a previously adjudicated and barred father with terminated parental rights and engaged in ongoing substance abuse. The key issues on appeal were whether the circuit court erred by (1) denying the mother a post-adjudicatory improvement period and (2) terminating her parental rights.

Although the mother’s appellate briefing failed to cite legal authority as required by Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, the Court exercised its discretion to reach the merits. Applying settled statutory and case law, the Court affirmed, holding that the record supported denial of an improvement period for lack of participation and accountability, and termination where there was no reasonable likelihood the abusive/neglectful conditions could be substantially corrected in the near future and termination was necessary for the children’s welfare.

Summary of the Opinion

The West Virginia Supreme Court (per curiam, by memorandum decision under Rule 21 without oral argument) affirmed the circuit court’s termination order. The Court emphasized:

  • Improvement periods are discretionary and require the parent to demonstrate a likelihood of full compliance (W. Va. Code § 49-4-610(2)(B); In re M.M.). Given the mother’s missed drug screens, positive tests, missed hearings, minimal visitation, and refusal to acknowledge substance abuse, the circuit court did not abuse its discretion in denying a post-adjudicatory improvement period.
  • Termination was proper because the mother did not respond to or follow through with rehabilitative services and case plan efforts, establishing no reasonable likelihood of substantial correction in the near future (W. Va. Code § 49-4-604(d)(3)). Once that finding is made, termination may be employed without less restrictive alternatives when necessary for the child’s welfare (W. Va. Code § 49-4-604(c)(6); In re Kristin Y.; In re R.J.M.).
  • The Court noted the mother’s noncompliant appellate brief but chose to address the merits while reiterating that failure to comply with Rule 10(c)(7) can warrant sanctions under Rule 10(j) per the Court’s 2012 Administrative Order.

Factual and Procedural Background

  • Initial Petition (Aug. 2023): DHS alleged abuse and neglect based on the mother’s exposing the children to K.H. (the father of two of the children), whose parental rights had previously been terminated and who was barred from contact. DHS also alleged a history of domestic violence by K.H. against the mother.
  • Amended Allegations: DHS added substance abuse allegations after the mother tested positive for methamphetamine, amphetamine, and marijuana.
  • Adjudication (Feb. 2024): The mother stipulated to neglect through exposure to K.H. and substance abuse. The court adjudicated her an abusing and neglecting parent. Her motion for a post-adjudicatory improvement period was held in abeyance pending proof of service participation (including drug screening).
  • Interim Conduct: The mother admitted in a court letter that she was not fully compliant with services and denied ongoing use despite a positive screen. DHS and the guardian ad litem (GAL) documented inconsistent screenings, continued positives, failure to engage in substance abuse treatment, poor contact with DHS, missed hearings, and minimal visitation (only one or two visits across many months).
  • Disposition (Aug. 2024): The mother did not appear (though represented by counsel). The circuit court denied the improvement period for lack of participation and failure to show likelihood of compliance, and then terminated parental rights, finding abandonment of proceedings, ongoing drug use without acknowledgment, failure to utilize services, an inability to correct conditions in the near future, and the children’s need for stability. Permanency plans included adoption for two children and reunification with their father (upon his successful improvement period) or adoption by grandparents for the others.

Precedents and Authorities Cited

  • Standard of Review: Syl. Pt. 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: W. Va. Code § 49-4-610(2)(B) — a post-adjudicatory improvement period requires a showing that the parent is likely to fully comply; In re M.M., 236 W. Va. 108, 778 S.E.2d 338 (2015) — circuit courts have discretion to grant or deny improvement periods.
  • Termination Standard: W. Va. Code § 49-4-604(d)(3) — no reasonable likelihood of substantial correction exists where the parent has not followed through with a reasonable family case plan; W. Va. Code § 49-4-604(c)(6) — termination is authorized when no reasonable likelihood exists and termination is necessary for the child’s welfare.
  • Less Restrictive Alternatives: 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) — termination may be employed without intervening less restrictive alternatives after statutory findings of no reasonable likelihood of correction.
  • Visitation as a Progress Indicator: In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (n.14) — parental interest in visitation while children are in placement is a significant factor in assessing potential for improvement to minimum parenting standards.
  • Appellate Rules and Compliance: W. Va. R. App. P. 10(c)(7) (briefs must cite authority and apply law); Rule 10(j) (sanctions for noncompliance); Court’s Administrative Order (Dec. 10, 2012) warning that noncompliant briefs may result in dismissal or sanctions; W. Va. R. App. P. 21 (memorandum decisions without oral argument where appropriate).

Legal Reasoning

1) Denial of a Post-Adjudicatory Improvement Period

The linchpin for a post-adjudicatory improvement period is a concrete, record-based showing that the parent is likely to fully comply with all terms and conditions. The statute places the burden on the parent. The circuit court held the motion in abeyance to allow the mother to demonstrate service engagement (particularly consistent drug screening and treatment). Instead, the record showed:

  • Repeated positive drug screens for multiple substances;
  • Failures to appear for directed drug testing;
  • Refusal to acknowledge a substance use disorder despite positive results;
  • Missed hearings, including nonappearance at the critical dispositional hearing;
  • Minimal visitation with the children across many months.

Given these facts, the Supreme Court found no abuse of discretion in denying the improvement period. In re M.M. affords circuit courts wide latitude when the parent’s own conduct undermines the statutory showing of likely compliance. The Court also treated the mother’s continued denial of a drug problem as incompatible with meaningful engagement in a case plan grounded in substance abuse remediation.

2) Termination of Parental Rights

Termination under W. Va. Code § 49-4-604(c)(6) requires two core findings: (a) 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. The statute expressly identifies the mother’s failure to respond to or follow through with the family case plan as a paradigm of “no reasonable likelihood” (§ 49-4-604(d)(3)). The Court found the record amply supported these findings:

  • Failure to engage with offered services (including treatment) and case plan tasks;
  • Continued substance use without acknowledgment or treatment engagement;
  • Erratic or missing drug screens (functionally treated as noncompliance);
  • Very limited visitation, signaling low engagement and limited prospects for improvement (Katie S.);
  • Nonappearance at disposition, which the circuit court interpreted as abandonment of the proceedings.

Having found § 49-4-604(d)(3) satisfied, the court was not obligated to impose less-restrictive alternatives prior to terminating parental rights (In re Kristin Y.; In re R.J.M.). The children’s need for stability and permanency weighed heavily in the best-interests analysis, and the Supreme Court concluded termination was both authorized and appropriate on this record.

3) Appellate Briefing Noncompliance

Before reaching the merits, the Court underscored the mother’s failure to provide legal citations or apply governing law, in violation of Rule 10(c)(7). Echoing its 2012 Administrative Order and Rule 10(j), the Court reiterated that such failures can warrant sanctions, including refusal to consider the case or dismissal. Nonetheless, in its discretion, the Court addressed the single assignment of error—providing a cautionary reminder to appellate practitioners that noncompliant briefing risks forfeiting review.

Impact and Significance

Doctrinal Clarifications

  • Improvement periods remain a discretionary tool, not an entitlement. A parent must proactively demonstrate likelihood of full compliance; mere assertion of motivation is insufficient against a record of nonparticipation and denial.
  • Denial and nonparticipation in drug treatment—especially combined with repeated positive screens and missed tests—strongly supports a finding of no reasonable likelihood of correction in the near future under § 49-4-604(d)(3).
  • Minimal visitation is a powerful indicator of limited parental engagement and poor prospects for improvement, consistent with Katie S.
  • Once the statutory “no reasonable likelihood” finding is made, termination may be ordered without resort to less-restrictive alternatives if necessary for child welfare (Kristin Y.; R.J.M.).

Practical Implications

  • For parents: A post-adjudicatory improvement period requires sustained, documentable engagement—consistent testing, treatment enrollment, attendance at hearings, and regular visitation. Denial of a substance abuse problem in the face of positive tests is a major obstacle.
  • For counsel: Appellate briefs must cite authority and apply it to the record. Noncompliance risks sanctions and loss of merits review. At the trial level, build a record of service participation or, where appropriate, the parent’s noncompliance.
  • For DHS/GALs: Detailed documentation of missed services, continued positives, missed screens, visitation history, and nonappearance supports both denial of improvement periods and termination findings aligned with § 49-4-604(d)(3).
  • For circuit courts: The decision supports holding improvement-period motions in abeyance pending concrete participation, and then denying when the record shows noncompliance, while proceeding to termination based on statutory criteria and best interests.

Complex Concepts Simplified

  • Adjudication vs. Disposition: Adjudication determines whether abuse/neglect occurred. Disposition determines what happens next—services, reunification efforts, or termination of parental rights.
  • Improvement Period: A court-approved, time-limited opportunity for a parent to correct the conditions of abuse/neglect by following a case plan. Post-adjudicatory improvement periods require a showing that the parent is likely to fully comply.
  • No Reasonable Likelihood of Correction: A statutory finding that, given the record, the parent is not likely to fix the conditions in the near future. Failing to follow through with a family case plan is an express basis for this finding.
  • Best Interests of the Child: The overarching principle in child welfare cases; stability, safety, and permanency often take precedence once parental rehabilitation prospects are poor.
  • Memorandum Decision (Rule 21): A streamlined appellate disposition without oral argument when the law is settled and the facts are clear. Although concise, it applies existing law to the case and is citable to the extent permitted by the Court’s rules.

Key Authorities Integrated by the Court

  • W. Va. Code § 49-4-610(2)(B) — burden and standard for post-adjudicatory improvement periods.
  • In re M.M., 236 W. Va. 108, 778 S.E.2d 338 — discretion in granting/denying improvement periods.
  • W. Va. Code § 49-4-604(d)(3) and (c)(6) — no reasonable likelihood of correction and termination standard.
  • In re Kristin Y.; In re R.J.M. — termination without less restrictive alternatives when statutory findings are made.
  • In re Katie S. — visitation as a proxy for engagement and capacity to meet minimum parenting standards.
  • In re Cecil T. — standards of review (clear error for facts; de novo for law).
  • W. Va. R. App. P. 10(c)(7), 10(j); Administrative Order (Dec. 10, 2012); Rule 21 — briefing compliance and memorandum decision framework.

Conclusion

In re J.H., J.M., T.K., and R.K. does not chart new doctrinal territory; rather, it cogently applies the well-settled statutory scheme and controlling case law governing improvement periods and termination in abuse and neglect matters. The decision underscores three practical realities of West Virginia child welfare law:

  1. Improvement periods must be earned through demonstrable engagement and accountability; when the parent cannot show likely full compliance, denial is appropriate.
  2. Persistent noncompliance with a family case plan—especially in the context of unremediated substance abuse and minimal visitation—supports findings of no reasonable likelihood of correction and the necessity of termination for the child’s welfare.
  3. Appellate advocacy must meet Rule 10(c)(7)’s requirements; while the Court may reach the merits, noncompliance jeopardizes review and invites sanctions.

By affirming termination here, the Court reiterates its enduring priority: timely permanency and stability for children when parental rehabilitation is not forthcoming. The memorandum decision provides clear guidance to practitioners and trial courts on the evidentiary showing required to deny improvement periods and to support termination under §§ 49-4-604 and 49-4-610, while reminding appellants to adhere faithfully to the Rules of Appellate Procedure.

Note: This commentary is for informational purposes only and does not constitute legal advice.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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