Introduction

In a memorandum decision issued on September 30, 2025, the Supreme Court of Appeals of West Virginia affirmed the termination of the parental and custodial rights of D.S. (the father) to N.S. The case clarifies and reinforces several recurring themes in West Virginia abuse-and-neglect jurisprudence:

• Continuances in abuse-and-neglect cases will not be granted merely to await developments in parallel criminal proceedings, in light of Rule 5 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings.
• Parents seeking a post-adjudicatory improvement period must demonstrate a present likelihood of full participation, which is undermined when the parent fails to acknowledge the neglect and fails to engage with services or the child.
• Termination may proceed without intervening less restrictive alternatives when there is no reasonable likelihood of correction in the near future and termination serves the child’s welfare.
• When termination is supported by factors beyond incarceration, no specialized “Cecil T.” incarceration-only analysis is required.

Although issued as a memorandum decision, the Court’s opinion offers instructive and practical guidance for trial courts, practitioners, and parties about the intersection of criminal proceedings, parental incarceration, and child welfare timelines.

Background and Parties

The West Virginia Department of Human Services (DHS) filed an abuse-and-neglect petition in August 2023 alleging that the father failed to adequately supervise N.S. and exposed the child to a drug-endangered environment. Before filing, DHS had obtained a safety plan placing the child with a relative due to the father’s substance abuse. The father did not initially appear despite representation by counsel. Service by publication issued in October 2023. He later appeared by video in March 2024 after being incarcerated on criminal charges.

At adjudication in May 2024, the father admitted to using fentanyl and methamphetamine, including during periods he was caring for the child, and that he sometimes smoked drugs in the bathroom while the child could have been present. He nevertheless denied that his use created a drug-endangered environment or impaired his judgment. The circuit court adjudicated him as a neglectful parent and N.S. as a neglected child.

At the August 2024 dispositional hearing, the father moved to continue (or hold the ruling in abeyance) pending a bond-reduction hearing in his criminal case; alternatively he requested a post-adjudicatory improvement period or a less restrictive “Disposition 5” under West Virginia Code § 49-4-604(c)(5). DHS and the guardian ad litem objected. The circuit court denied the continuance, found the father had not shown a likelihood of participating in services, found no reasonable likelihood of correction in the near future, and terminated his parental and custodial rights. The mother successfully completed services and was reunified with the child.

Summary of the Opinion

• Continuance denied: The Supreme Court held there was no abuse of discretion in denying a continuance or abeyance pending a bond hearing. Rule 5 expressly disallows delaying abuse-and-neglect proceedings for criminal matters.
• Improvement period denied: The father failed to show by clear and convincing evidence a likelihood of full participation in a post-adjudicatory improvement period (W. Va. Code § 49-4-610(2)(B)), especially given his denial of neglect, prolonged absence before incarceration, and failure to contact DHS or the child even after incarceration.
• Termination affirmed without less restrictive alternatives: Given no reasonable likelihood that conditions could be substantially corrected in the near future (W. Va. Code § 49-4-604(d)) and a finding that termination was necessary for the child’s welfare, the circuit court properly terminated parental rights without employing less restrictive alternatives (W. Va. Code § 49-4-604(c)(6)).
• No “Cecil T.” error: The Court rejected the argument that the circuit court failed to conduct a “Cecil T.” analysis because termination was not based solely on incarceration; the record reflected broader, independent grounds demonstrating non-remediation.

The Court affirmed the circuit court’s November 4, 2024 order.

Detailed Analysis

Precedents and Authorities Cited

• Rule 5, W. Va. R. P. Child Abuse & Neglect Proceedings: Proceedings should not be delayed pending initiation, investigation, prosecution, or resolution of criminal proceedings. The opinion leans heavily on this rule to uphold the denial of a continuance tied to a bond hearing.
• In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996): Continuances are reviewed for abuse of discretion; denial is reversible only when it reflects an “unreasoning and arbitrary insistence upon expeditiousness” (quoting Morris v. Slappy, 461 U.S. 1). The Court found no such arbitrariness here because Rule 5 counseled against delay.
• Morris v. Slappy, 461 U.S. 1 (1983): Supplies the “unreasoning and arbitrary insistence upon expeditiousness” standard adopted in Tiffany Marie S. The Court emphasized that the father’s request to await a bond reduction did not constitute a justifiable basis to delay a child welfare case.
• In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): Provides the standard of review (facts for clear error; legal questions de novo). Also stands for the principle that when incarceration is the only factor, a specific analysis is required; here, because termination rested on broader factors, no specialized incarceration-only analysis was necessary.
• W. Va. Code § 49-4-610(2)(B): A parent seeking a post-adjudicatory improvement period must demonstrate by clear and convincing evidence a likelihood of full participation. The father could not meet this standard given non-acknowledgment of neglect, historical nonparticipation, and failure to engage even while incarcerated.
• In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002): Circuit courts have discretion to deny improvement periods when improvement is unlikely. The Court affirmed the exercise of that discretion here.
• In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)): Termination may be employed without less restrictive alternatives when there is no reasonable likelihood that conditions of neglect can be substantially corrected. This principle justified denying the father’s request for “Disposition 5.”
• 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)): To remedy abuse or neglect, a parent must recognize and acknowledge the conduct. Without acknowledgment, the problem is considered untreatable. The father’s denial that his drug use impaired his caregiving cut against any improvement period.
• In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000): One parent’s fitness and reunification does not entitle the other parent to retain rights if the other’s conditions remain unremedied and endanger the child. This undercut the father’s argument that termination was “premature” given the mother’s success and kinship placement.
• W. Va. Code § 49-4-604(c)(6): Authorizes termination when there is no reasonable likelihood of correcting conditions in the near future and termination is necessary for the child’s welfare.
• W. Va. Code § 49-4-604(d): Defines “no reasonable likelihood” to mean the parent has demonstrated an inadequate capacity to solve the problems on his own or with help based on the evidence before the court.
• W. Va. Code § 49-4-604(c)(5): Provides a less restrictive dispositional alternative (“Disposition 5”), which is unavailable where the statutory criteria for termination are met.
• W. Va. Code § 49-4-601(e)(4): Authorizes service by publication; relevant because the father argued lack of notice before incarceration, but publication occurred months earlier and he had participated in a safety plan before the petition, reflecting early awareness of DHS involvement.

Legal Reasoning Applied to the Record

1. Continuance appropriately denied under Rule 5: The father sought delay to await a criminal bond decision. Rule 5 explicitly rejects delaying child abuse-and-neglect proceedings for criminal matters. The Court also found no abuse of discretion under Tiffany Marie S. and Morris v. Slappy, because the denial was neither unreasoned nor arbitrary; it adhered to a rule designed to protect timely permanency for children, especially those of tender years.
2. No entitlement to improvement period without acknowledgment and demonstrated participation: Under § 49-4-610(2)(B), the father bore the burden to show by clear and convincing evidence that he was likely to fully participate. The court found:
   • Pre-adjudication, the father was largely absent and required service by publication despite his counsel’s efforts and his earlier agreement to a safety plan.
   • Even after incarceration, he failed to contact DHS or the child and did not send letters or tokens, despite having commissary funds and the ability to do so.
   • He denied that his fentanyl/methamphetamine use around the child impaired his caregiving or created a drug-endangered environment, contradicting the acknowledgment requirement in Timber M.
   These facts undermined any showing of a present likelihood of full participation, justifying denial of an improvement period.
3. Termination without less restrictive alternatives was proper: The circuit court found no reasonable likelihood of substantial correction in the near future (§ 49-4-604(d)) and that termination served the child’s welfare (§ 49-4-604(c)(6)). Given the father’s continued non-acknowledgment, lack of contact, and failure to take meaningful steps toward remediation, the court was not required to pursue “Disposition 5” or other less restrictive outcomes under Kristin Y. and R.J.M.
4. No “Cecil T.” error: A specialized “incarceration-only” analysis is required when the court relies solely on incarceration to terminate rights. Here, termination rested on independent grounds: pre-incarceration absence, failure to engage, and denial of neglect. The father’s incarceration was not the linchpin; thus, no separate “Cecil T.” analysis was necessary.
5. Mother’s reunification does not forestall termination as to father: The Court reaffirmed In re Emily: one parent’s success neither guarantees nor necessitates preservation of the other parent’s rights if that parent remains unremediated. The focus remains the child’s safety and timely permanency.

Impact and Practical Significance

• Continuance practice tightened: Trial courts can rely on Rule 5 to deny continuances pegged to criminal case milestones (e.g., bond hearings, plea negotiations, trial dates). Parties should not expect child welfare timelines to bend to criminal schedules.
• Incarcerated parents must proactively engage: The decision underscores that incarceration is not an excuse for non-engagement. Efforts like contacting DHS, participating in available programs, sending letters, and documenting progress matter and should be made part of the record.
• Acknowledgment remains foundational: Parents who deny that their conduct constitutes neglect or abuse face steep odds obtaining improvement periods. Counsel should prepare clients to acknowledge and accept responsibility early and concretely.
• Less restrictive alternatives are not obligatory: When statutory criteria under § 49-4-604(c)(6) and (d) are met, courts may proceed directly to termination without intermediate dispositions. “Disposition 5” remains conditional, not mandatory.
• Service by publication, plus actual awareness, satisfies due process concerns: Where publication complies with § 49-4-601(e)(4), and the parent already evidenced awareness through a safety plan or counsel’s involvement, claims of notice defects will be difficult to sustain.
• Memorandum decision but instructive: While this is a Rule 21 memorandum decision (and thus not a syllabus-point opinion), it aligns with and illustrates existing doctrine, making it persuasive for similar fact patterns.

Complex Concepts Simplified

• Post-adjudicatory improvement period: A court-supervised period after the parent has been found neglectful/abusive, during which the parent must comply with services and demonstrate change. The parent must prove, by clear and convincing evidence, that they are likely to fully participate.
• “Disposition 5” (W. Va. Code § 49-4-604(c)(5)): A less restrictive alternative to termination that can include placing the child with a fit parent or suitable person while preserving the neglecting parent’s rights. Courts are not required to use it if the statutory basis for termination is satisfied.
• “No reasonable likelihood” of correction (§ 49-4-604(d)): A legal threshold met when evidence shows the parent cannot solve the underlying problems on their own or with help within a time frame meaningful to the child’s needs.
• “Cecil T. analysis”: A specific review required when termination is based solely on incarceration; the trial court must consider how incarceration affects remediation and the child’s needs. Not required when other, independent factors justify termination.
• Rule 5 (Child Abuse & Neglect Proceedings): A timing rule that prioritizes children’s cases by preventing delays due to related criminal proceedings.
• Drug-endangered environment: A caregiving setting where illegal drug use, distribution, or impairment compromises safety and well-being. Using fentanyl or methamphetamine while caring for a child, even if confined to another room, can constitute such an environment.
• Service by publication: A lawful method of serving notice when a party cannot be personally served despite due diligence. If properly executed, it provides valid notice for moving a case forward.

Practice Pointers

• For parent’s counsel:
  • Advise immediate engagement: acknowledge issues, request services early, and document every contact with DHS.
  • If incarcerated, send letters to the child (if permitted), request virtual visits, enroll in available programming, and have proof ready for court.
  • Do not predicate continuance requests on criminal case events; instead, show concrete, child-focused reasons why a short delay is necessary under the statutory timelines.
• For DHS/GAL:
  • Build a record showing service efforts, parent’s responsiveness (or lack thereof), and child’s needs tied to permanency timelines.
  • When opposing improvement periods, emphasize failure to acknowledge neglect and concrete instances of non-engagement.
• For courts:
  • Expressly tie continuance rulings to Rule 5 and permanency imperatives.
  • Where incarceration is present, document the additional factors supporting findings to obviate the need for a “Cecil T.” incarceration-only analysis.

Conclusion

In re N.S. reinforces core principles of West Virginia abuse-and-neglect law: proceedings must move forward without deference to the tempo of criminal cases; improvement periods are earned by demonstrated readiness, acknowledgment, and engagement; and termination requires neither delay nor intermediate alternatives when the statutory criteria are met and the child’s welfare so requires. The Court’s application of Rule 5, its insistence on acknowledgment as a predicate to remediation, and its refusal to treat incarceration as either a shield or a per se ground for termination reflect a consistent child-centric approach aimed at timely permanency.

The decision serves as a pointed reminder that the decisive question in these cases is not whether a parent might improve in an indeterminate future, but whether, on the evidence now, there is a reasonable likelihood of substantial correction in the near future consistent with the child’s developmental needs. On this record, the Supreme Court concluded there was not—and affirmed termination.

Citation

In re N.S., No. 24-708 (W. Va. Sept. 30, 2025) (memorandum decision) (affirming Harrison County No. CC-17-2023-JA-107).