Reaffirming Strict Standards for Improvement Periods and Termination Despite a Fit Co‑Parent: Commentary on In re B.B. (W. Va. 2025)

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re B.B., No. 24‑709 (Nov. 4, 2025), affirms a circuit court order terminating a father’s parental rights to his infant child, B.B., and denying him a post‑adjudicatory improvement period. The decision is procedurally routine but doctrinally significant in the way it:

Reapplies and reinforces the strict statutory standard governing improvement periods, particularly for parents with a history of prior terminations and persistent substance abuse.
Clarifies that a parent’s late‑breaking or strategically motivated agreement to treatment—especially when tied to a criminal plea—does not, by itself, satisfy the requirement to show a genuine likelihood of full participation in an improvement period.
Reaffirms that a parent’s rights may be terminated even when the other parent is fit and has been reunified with the child, where termination is still “necessary for the welfare of the child.”

The Court issues this as a memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure, indicating that it sees the issues as controlled by settled law and not warranting new syllabus points. Nonetheless, the opinion is a useful, concrete application of several foundational abuse‑and‑neglect precedents and statutory provisions.

II. Factual and Procedural Background

A. Parties and Roles

Petitioner Father: N.B., represented by counsel.
Child: B.B., born September 2023.
Agency: West Virginia Department of Human Services (DHS).
Guardian ad Litem: Appointed for B.B.
Mother: Not a party to this appeal; her parental rights remain intact and the child has been reunified with her.

B. Prior Abuse and Neglect History

Before B.B.’s birth, N.B.’s parental rights to three older children—J.B., S.S., and S.B.—had been involuntarily terminated in prior abuse and neglect cases:

Rights to J.B. terminated based on N.B.’s incarceration.
Rights to S.S. and S.B. terminated based on N.B.’s substance abuse.

Despite the prior terminations and the denial of post‑termination visitation, N.B. continued to have contact with two of those older children, in open disregard of court orders. He also failed to demonstrate any material change in circumstances since the earlier terminations.

C. Filing of the Petition and New Criminal Conduct

After B.B.’s birth in September 2023, DHS filed an abuse and neglect petition alleging:

Prior involuntary termination of N.B.’s parental rights to his three older children;
Ongoing contact with two of those children despite denial of post‑termination visitation; and
No meaningful change in the circumstances that led to the prior terminations.

Soon after the petition was filed, N.B. was arrested and later pled guilty to the felony offense of possession with intent to deliver fentanyl and methamphetamine. He was incarcerated for most of the proceedings.

D. Adjudication

At an adjudicatory hearing in August 2024, N.B. stipulated that:

His parental rights to the three older children had been previously terminated; and
He had failed to demonstrate any change in circumstances since those prior terminations.

Based on that stipulation, the circuit court adjudicated N.B. as a neglectful parent as to B.B. After adjudication, N.B. filed a motion for a post‑adjudicatory improvement period.

E. Dispositional Hearing

At disposition, DHS presented evidence that:

N.B. had a history of continuous substance abuse and relapse.
He had committed new drug‑related felony conduct (possession with intent to deliver fentanyl and methamphetamine).
He admitted to abusing substances during a brief period of release from incarceration.
He had failed to participate in remedial services in prior abuse and neglect proceedings that led to the termination of his rights to his three older children.
He was offered parenting classes and substance abuse treatment while incarcerated but:
- He did not participate in those services, and
- He never sought treatment for substance abuse on his own initiative.
He agreed to participate in a long‑term inpatient drug treatment program, but that agreement was part of a criminal plea deal in an effort to secure probation, not a free‑standing commitment to rehabilitation in the child welfare case.

The circuit court found that:

N.B. was unlikely to participate meaningfully in an improvement period, as he consistently engaged in the same conduct that led to prior terminations and his current incarceration.
There was no reasonable likelihood that he could substantially correct the conditions of abuse and neglect in the near future.
Termination of his parental rights was necessary for B.B.’s welfare, especially given his history of violating no‑contact orders with children to whom his rights had already been terminated.

Accordingly, the circuit court:

Denied the motion for a post‑adjudicatory improvement period; and
Terminated N.B.’s parental rights to B.B.

N.B. appealed both rulings.

III. Summary of the Supreme Court’s Decision

The Supreme Court of Appeals of West Virginia:

Applied a clear error standard to factual findings and de novo review to legal conclusions (citing syllabus point 1 of In re Cecil T.).
Affirmed the denial of a post‑adjudicatory improvement period, holding that:
- Under West Virginia Code § 49‑4‑610(2)(B), the parent bears the burden of showing by clear and convincing evidence that he is likely to fully participate in the improvement period.
- N.B. failed to carry that burden, given his long history of substance abuse, repeated failures to engage in services, new drug conviction, and failure to take advantage of available treatment while incarcerated.
- His agreement to inpatient treatment, made in the context of a criminal plea bargain, did not by itself establish that he was genuinely likely to participate.
Affirmed the termination of parental rights, holding that:
- The evidence supported a finding of no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future, within the meaning of § 49‑4‑604(d).
- Termination was necessary for B.B.’s welfare, particularly in light of N.B.’s willful disregard of prior court orders (continued contact with children despite terminated rights).
- The fact that the mother remained a fit parent and had been reunified with B.B. did not preclude termination of the father’s rights, consistent with In re Emily.
- Consistent with In re Kristin Y. and In re R.J.M., the circuit court was not required to employ less restrictive alternatives where no reasonable likelihood of correction existed and termination was necessary for the child’s welfare.

The Court concluded that the circuit court did not err and affirmed the November 6, 2024 order.

IV. Detailed Analysis

A. Precedents and Statutory Framework

1. In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)

The Court cited syllabus point 1 of In re Cecil T. for the standard of review:

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the circuit court’s findings of fact for clear error and its conclusions of law de novo.

This two‑part standard is critical:

Factual findings (e.g., whether N.B. actually failed to participate in services) are reviewed for clear error, a highly deferential standard under which an appellate court will not disturb findings unless left with a firm conviction that a mistake has been made.
Legal conclusions (e.g., interpretation of statutory terms like “no reasonable likelihood”) are reviewed de novo, giving the appellate court full authority to interpret and apply the law.

In practice, this framework makes it difficult for a parent like N.B. to overturn a denial of an improvement period or a termination when the circuit court has made detailed factual findings based on credibility and a long evidentiary record.

2. West Virginia Code § 49‑4‑610(2)(B): Improvement Periods

Section 49‑4‑610(2)(B) provides that a parent may be granted a post‑adjudicatory improvement period if the parent:

“demonstrates, by clear and convincing evidence, that he or she is likely to fully participate in the improvement period.”

Key points highlighted by the Court’s application:

The burden of proof is on the parent, not on DHS, and the standard is clear and convincing evidence, a relatively high civil standard.
The statute emphasizes the parent’s likelihood of full participation, not merely verbal willingness or partial participation.
The parent’s past behavior and pattern of engagement (or non‑engagement) in services are highly probative of future likelihood of participation.

3. In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002)

The Court cites In re Tonjia M. for the proposition:

“The circuit court has the discretion to refuse to grant an improvement period when no improvement is likely.”

This emphasizes:

The granting of an improvement period is not automatic; it lies within the discretion of the circuit court.
Where the record shows a long, unbroken history of non‑compliance and relapse, the circuit court may reasonably conclude that “no improvement is likely,” and thus deny an improvement period even if the parent expresses willingness at the hearing.
Appellate courts are generally reluctant to second‑guess that discretionary determination when grounded in a substantial record of non‑compliance.

4. West Virginia Code § 49‑4‑604(d) & (c)(6): Termination Standard

Section 49‑4‑604(d) defines “no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” as:

… the abusing adult … [has] demonstrated an inadequate capacity to solve the problems of abuse or neglect on his or her own or with help.

Section 49‑4‑604(c)(6) authorizes termination of parental rights:

[u]pon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child.

In In re B.B., the Court applies this statutory framework straightforwardly:

N.B.’s long‑term substance abuse, repeated non‑participation in services, and relapse even during brief release from incarceration were treated as demonstrating an “inadequate capacity” to solve the underlying problems.
The persistence of these problems “across multiple proceedings” was central to the finding of “no reasonable likelihood” of correction in the near future.
N.B.’s continued unauthorized contact with children to whom his rights had been terminated supported the conclusion that termination was necessary for B.B.’s welfare, as it evidenced disregard for court orders and potential ongoing risk.

5. In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000)

In rejecting N.B.’s argument that termination was unnecessary because the mother remained a fit parent, the Court relies on In re Emily:

“[S]imply because one parent has been found to be a fit and proper caretaker for [the] child does not automatically entitle the child’s other parent to retain his/her parental rights if his/her conduct has endangered the child and such conditions of abuse and/or neglect are not expected to improve.”

This precedent is critical. It confirms that:

The statutory focus remains on each parent’s conduct and capacity, not on the presence of another fit caregiver.
A fit co‑parent may be sufficient for placement and permanency, but it does not shield the unfit parent from termination where statutory criteria are met.
West Virginia’s child welfare regime allows for asymmetrical outcomes: one parent’s rights can be preserved and another’s terminated in the same case.

6. In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) & In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

The Court cites syllabus point 5 of In re Kristin Y., which in turn relies on syllabus point 2 of In re R.J.M., for the proposition that:

[C]ircuit courts are permitted to terminate parental rights without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood that conditions of neglect or abuse can be substantially corrected and termination is necessary for the child’s welfare.

This line of authority matters because parents often argue for “less restrictive alternatives” to termination, such as:

Long‑term guardianship;
Supervised visitation only;
Conditional or suspended termination; or
Deferral of disposition to allow more time.

Here, the Court reiterates that once the statutory criteria are met—no reasonable likelihood of correction and necessity for the child’s welfare—termination is an authorized and sufficient remedy. The circuit court is not compelled to cycle through or formally reject lesser options first.

B. The Court’s Legal Reasoning

1. Denial of the Post‑Adjudicatory Improvement Period

The Court’s analysis of the improvement period centers on three interrelated points:

The parent’s burden and the “clear and convincing” standard.
The predictive value of past non‑compliance and recidivism.
The inadequacy of a purely strategic or last‑minute willingness to engage in services.

a. Parent’s Burden to Show Likelihood of Full Participation

Under § 49‑4‑610(2)(B), N.B. had to show by clear and convincing evidence that he was likely to fully participate in the improvement period. The Supreme Court accepts the circuit court’s conclusion that this burden was not met. The record showed:

Three prior involuntary terminations tied to incarceration and substance abuse;
Repeated failure to complete or meaningfully engage in remedial services in those earlier cases;
Failure to access available parenting and treatment programs while incarcerated in the current case;
New serious drug‑related felony conduct and continued substance abuse during temporary release.

Given this history, the Court agrees that N.B.’s pattern of behavior spoke louder than his late‑stage promises of change.

b. Emphasis on Pattern and Persistence of Problems

The Court notes that N.B.’s substance abuse issues and non‑compliance with services “persisted, unabated, across multiple proceedings.” The recurrence of similar problems over time is treated as strong evidence that no meaningful improvement is likely, and thus that offering another improvement period would be futile.

This is consistent with the Legislature’s and the Court’s broader focus on permanency and finality in child welfare cases. Repeated “second chances” that do not produce real change undermine timely permanency for the child.

c. Strategic Agreement to Treatment Is Not Enough

N.B. relied heavily on his agreement to enter a long‑term inpatient drug treatment program. However, the Court emphasizes a critical detail: that agreement was made as part of a criminal plea deal and “in an attempt to be granted probation.” It was not an independent, longstanding effort at rehabilitation within the child welfare system.

The Court effectively draws a line between:

Genuine, sustained efforts at self‑initiated treatment (which may support an improvement period), and
Last‑minute, strategically motivated commitments (especially when tied to criminal leniency), which are insufficient on their own.

The Court also notes that N.B. did not:

Seek treatment on his own initiative;
Participate in the parenting and treatment opportunities already available in the jail or prison setting.

Those omissions undercut the credibility of his newly professed willingness.

d. Discretion of the Circuit Court

By invoking In re Tonjia M., the Court underscores that:

The circuit court’s decision on improvement periods is discretionary.
Where “no improvement is likely,” denying an improvement period is well within that discretion.

In In re B.B., the Supreme Court sees ample evidence supporting the circuit court’s assessment of N.B.’s likely (non‑)participation and therefore declines to disturb that discretionary judgment.

2. Affirmance of the Termination of Parental Rights

The termination analysis proceeds in two statutory steps, both of which the Court finds satisfied:

No reasonable likelihood that conditions can be substantially corrected in the near future.
Termination necessary for the child’s welfare.

a. No Reasonable Likelihood of Correction

The Court relies on § 49‑4‑604(d) and emphasizes the definition’s focus on the parent’s capacity to solve problems “on his own or with help.”

For N.B., the evidence showed:

Long‑standing substance abuse tied to prior terminations;
New serious drug offenses involving fentanyl and methamphetamine;
Ongoing use of substances even while under court supervision;
Failure to engage with treatment or classes offered during incarceration;
Non‑compliance with services in prior cases, despite repeated opportunities.

The Court characterizes these problems as persisting “unabated” and spanning multiple cases. Such a record supports a conclusion that N.B. has demonstrated an inadequate capacity to resolve the underlying issues, even with assistance, within any time frame meaningful for B.B.’s developmental needs.

b. Necessity for the Welfare of the Child

The “welfare of the child” analysis in this case turns heavily on N.B.’s history of willful disregard of court orders, specifically:

Maintaining contact with two of his older children after his parental rights to them had been terminated and post‑termination visitation had been denied.

This behavior demonstrated:

Disregard for judicial authority;
An increased risk that he would similarly disregard protective orders or conditions placed on his interactions with B.B.; and
An ongoing threat to the stability and safety of any child within the system’s oversight.

The Court frames the termination as a protective measure for B.B., necessary to shield the child from a parent who has not only failed to correct the problems that led to prior removals but has also openly defied the courts’ attempts to regulate his contact with children.

c. Termination Despite a Fit Co‑Parent

N.B. argued that termination of his rights was unnecessary because the mother had retained her parental rights and B.B. had already been reunified with her. The Court rejects that argument, relying on In re Emily to confirm:

A fit co‑parent’s presence does not immunize the unfit parent from termination.
Each parent’s rights are evaluated independently; the statute requires a focus on that parent’s conduct and prognosis.
If a parent’s conduct has endangered the child and is not expected to improve, termination remains an available and appropriate remedy.

This reinforces a key principle of West Virginia abuse‑and‑neglect jurisprudence: the system does not preserve parental rights merely as a formal status or symbolic benefit to the parent; rights endure only insofar as they remain compatible with the child’s safety and welfare.

d. No Requirement of Less Restrictive Alternatives

Finally, by citing Kristin Y. and R.J.M., the Court reiterates that:

Once the statutory findings are made (no reasonable likelihood of correction; termination necessary for welfare), the circuit court may proceed directly to termination.
It need not experiment with or document the inadequacy of intermediate measures such as long‑term supervised visitation or shared custody.

In N.B.’s case, this is particularly significant given his pattern of ignoring prior no‑contact orders. The Court essentially recognizes that lesser alternatives would be illusory protections—given his history, it would be unsafe to assume he would respect less restrictive arrangements.

C. Impact and Broader Significance

1. For Parents with Multiple Prior Terminations and Substance Abuse Histories

In re B.B. sends a clear signal for similar future cases:

Parents with multiple prior terminations, especially tied to substance abuse, will face a steep uphill battle in obtaining another improvement period.
The mere assertion of willingness to engage in treatment, or a late agreement to enter a program, will usually be insufficient.
Courts will expect to see documented, proactive, and sustained efforts at rehabilitation:
- Use of available services (even in incarceration settings);
- Completion of structured treatment programs; and
- Evidence of actual sobriety and behavioral change over time.

For defense counsel, the decision underscores the importance of encouraging clients to begin treatment and services as early as possible, and to document that participation, rather than relying on last‑minute promises at disposition.

2. Strategic Treatment Commitments in Criminal Proceedings

The Court’s treatment of N.B.’s inpatient program agreement is particularly noteworthy. It signals that where a treatment agreement is clearly linked to leniency in a criminal case, it will be viewed with skepticism in the abuse‑and‑neglect context unless supported by:

Independent follow‑through;
Evidence of intrinsic motivation to change;
Use of other available services beyond what is required by the criminal court.

This prevents criminal‑case pleas from being used as a kind of “back‑door” argument for an improvement period without demonstrating genuine rehabilitation.

3. Continued Contact After Termination as a Factor in Future Cases

The opinion gives special weight to N.B.’s continued contact with his older children despite the termination of his rights and denial of post‑termination visitation. For future cases, this implies that:

Violation of no‑contact or termination orders in prior cases is a serious aggravating factor in subsequent abuse‑and‑neglect proceedings.
Such conduct goes beyond mere non‑compliance with services; it suggests a fundamental unwillingness to accept court authority and protective limitations.
That, in turn, will support findings that:
- No reasonable likelihood of correction exists; and
- Termination is necessary for the welfare of new children entering the system.

4. Asymmetrical Termination Where One Parent Is Fit

The reiteration of In re Emily keeps in place a crucial doctrinal point: West Virginia courts are entirely comfortable with terminating one parent’s rights while preserving the other’s.

Practical implications:

Fit parents cannot assume that the other parent’s rights will be preserved simply because the child is safely placed with them.
Unfit parents cannot rely on the existence of a fit co‑parent as a “shield” against termination.
DHS and guardians ad litem can seek termination of one parent’s rights based solely on that parent’s conduct and prognosis, even when permanency is otherwise secured with the other parent.

5. Reinforcement of Permanency and Finality

Although this is a memorandum decision, it fits squarely within the Court’s long‑standing emphasis on:

Permanency for the child over prolonged parental rehabilitation efforts that show little promise of success;
Limiting repeated cycles of removal and reunification that may harm children;
Requiring demonstrable change—not simply stated intentions—before extending further opportunities to parents with chronic issues.

The decision thus reinforces for practitioners that once a parent has accumulated multiple terminations and longstanding non‑compliance, the system’s tolerance for additional “second chances” is extremely limited.

V. Simplifying Key Legal Concepts

Several technical terms and procedural concepts are central to understanding In re B.B.. Below is a simplified explanation of the most important ones.

1. Abuse and Neglect Petition

A formal document filed by DHS alleging that a child is abused or neglected and asking the court to intervene. Here, DHS alleged, among other things, that:

N.B. had prior involuntary terminations of parental rights;
He continued contact with children contrary to court orders;
He had not changed the underlying conditions (substance abuse, criminal conduct) that led to prior terminations.

2. Adjudication

The phase in an abuse‑and‑neglect case where the court determines whether the child is actually abused or neglected as alleged. If the allegations are proven (or stipulated), the parent is “adjudicated” as an abusing or neglecting parent.

In In re B.B., N.B. stipulated at adjudication that:

His rights had been terminated to three older children, and
He had not changed his circumstances since those terminations.

The court then adjudicated him as neglecting B.B.

3. Post‑Adjudicatory Improvement Period

An “improvement period” is a court‑ordered window of time during which a parent is given services and a structured plan to correct the problems that led to the abuse or neglect finding. A post‑adjudicatory improvement period is one granted after adjudication and before final disposition.

To obtain such a period under West Virginia law, a parent must:

Show by clear and convincing evidence that he or she is likely to fully participate; and
Commit to a plan that realistically addresses the underlying issues (e.g., substance abuse treatment, parenting classes, counseling).

The court is not required to grant an improvement period simply because the parent asks for it or says they are willing; the judge must be convinced that real, sustained participation is likely.

4. Standard of Review on Appeal

Clear error: Appellate courts defer to the circuit court’s factual findings unless there is a very obvious mistake. This protects findings based on witness credibility and the weighing of evidence.
De novo: The appellate court reviews legal issues afresh, without deference to the trial court’s conclusions.

5. “Clear and Convincing Evidence”

This is a high standard of proof, between “preponderance of the evidence” (more likely than not) and “beyond a reasonable doubt” (the criminal standard). It requires evidence that makes a fact highly probable.

In this case, N.B. had to meet this standard to show he was likely to fully participate in an improvement period. The Court found he failed to meet it.

6. “No Reasonable Likelihood that Conditions … Can Be Substantially Corrected”

This is a statutory phrase from § 49‑4‑604(d). It does not require proof that change is absolutely impossible. Instead, it means:

Based on past behavior and current circumstances, it is unrealistic to expect that the parent will correct the problems in a time frame that is meaningful for the child.
The parent has shown an inadequate capacity to solve those problems, even when help is offered.

7. “Necessary for the Welfare of the Child”

Even if there is no reasonable likelihood of correction, the court still must find that termination is necessary for the child’s welfare. This involves evaluating:

Safety risks to the child;
The child’s need for stability and permanency;
The likely impact of ongoing or future contact with the parent.

In In re B.B., the court found necessity based in part on N.B.’s repeated disregard of no‑contact orders, which created an ongoing risk to any child in his orbit.

8. Termination of Parental Rights

Termination is the most severe disposition available in an abuse‑and‑neglect case. It:

Ends all legal rights and responsibilities of the parent as to the child (except, in some circumstances, for the obligation to pay child support);
Severs the parent‑child legal relationship for purposes of custody, visitation, and decision‑making.

Because it is so drastic, it is reserved for cases where statutory criteria are clearly met and lesser interventions are inadequate or unsafe.

VI. Conclusion

In re B.B. does not create new doctrine but powerfully illustrates the application of West Virginia’s existing abuse‑and‑neglect framework to a familiar and difficult context: a parent with multiple prior terminations, chronic substance abuse, and new drug‑related criminal activity.

The Court’s decision underscores several key points:

Improvement periods are not entitlements. They are discretionary and require a parent to carry a substantial evidentiary burden, especially when there is a history of non‑compliance and recidivism.
Past conduct is the best predictor of future behavior. Repeated failures to engage in services—even when offered in incarceration—will weigh heavily against any claim that meaningful participation is now likely.
Strategic or last‑minute treatment commitments are not enough. Agreements to enter treatment as part of a criminal plea, without a track record of actual follow‑through, do not satisfy the statutory standard.
Termination is permissible even with a fit co‑parent. A parent cannot rely on the presence of a fit mother or father to preserve their own rights when their conduct remains dangerous and unlikely to improve.
Willful defiance of court orders is a serious aggravating factor. Continued contact with children after termination of rights demonstrates risk and supports the necessity of termination in subsequent cases.

In reaffirming these principles, the Court emphasizes that the paramount concern in abuse‑and‑neglect proceedings remains the safety, stability, and welfare of the child, not the preservation of parental rights for their own sake. For practitioners, In re B.B. serves as a clear reminder that in cases of entrenched substance abuse and repeated system involvement, only concrete, sustained, and documented change will suffice to avoid termination.