Reaffirming Termination of Custodial Rights for Noncompliance with Improvement Periods in West Virginia Abuse and Neglect Proceedings: Commentary on In re N.M., B.M., C.M., P.M., A.H., and Z.H.

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

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re N.M., B.M., C.M., P.M., A.H., and Z.H., No. 24-748 (Nov. 25, 2025), arises from an abuse and neglect proceeding in which the circuit court of Harrison County terminated the custodial rights of D.S., the mother’s then-boyfriend (later husband), to six children.

Although issued as a memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure—signaling that the Court viewed the issues as governed by settled law—the case is a useful and concrete reaffirmation of several important principles in West Virginia child welfare law:

The circumstances under which a circuit court may terminate custodial (as opposed to parental) rights under West Virginia Code § 49-4-604(c)(6).
The significance of failing to meaningfully participate in and complete a court-ordered improvement period, and how “partial” or “substantial but incomplete” compliance is assessed.
The requirement of a written motion before a circuit court may grant a post-dispositional improvement period under West Virginia Code § 49-4-610, as articulated in State ex rel. P.G.-1 v. Wilson.
The consequences of inadequate briefing and failure to cite authority on appeal under Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure.

The parties include:

Petitioner Custodian D.S. – The mother’s boyfriend at the time of the petition (and later her husband), who had custodial responsibilities and was adjudicated as an abusing and neglecting custodian.
West Virginia Department of Human Services (DHS) – The petitioner below, seeking protection of the children and termination of rights.
The children – N.M., B.M., C.M., P.M., A.H., and Z.H., all minors in the same household.
Guardian ad litem – Attorney appointed to represent the children’s best interests.

The decision ultimately affirms the termination of D.S.’s custodial rights, rejecting arguments that his partial compliance with an improvement period should have precluded termination, and reinforcing procedural and substantive standards in West Virginia’s abuse and neglect jurisprudence.

II. Summary of the Opinion

A. Procedural Background

In November 2023, DHS filed an abuse and neglect petition alleging that D.S. struck then–eleven-year-old N.M. with an open hand across the face. Because all six children resided in the same home at the time, DHS alleged that each child was under conditions of abuse and neglect.

In January 2024, D.S. executed a written stipulation:

He admitted that he had “smacked” N.M. in the face and acknowledged this was an inappropriate method of discipline.
He further stipulated that his conduct placed the other children in the home at risk of and vulnerable to similar physical abuse.

Based on these stipulations, the circuit court adjudicated him as an abusing and neglecting custodian.

In February 2024, the court granted D.S. a post-adjudicatory improvement period, with conditions including:

Completion of a psychological evaluation and compliance with all recommendations.
Regular drug screening and abstention from illegal substances and alcohol.
Participation in parenting and life skills classes.
Supervised visitation with the children.
Compliance with service provider recommendations.
Maintenance of stable and clean housing and employment.
Engagement in individual and marital counseling.

A March 2024 parental fitness evaluation by psychologist Dr. Erin Teaff found:

D.S. had a fair prognosis for improved parenting but, at that time, did not have the capacity to safely care for the children.
She expressed concern about his anger issues.
She recommended therapy (individual, marital, and family), abstinence from substances, obtaining employment, parenting classes, and strict adherence to court directives.

B. Evidence at Disposition

At the October 2024 dispositional hearing, several witnesses testified regarding D.S.’s compliance:

Therapist (Dr. Don Worth) – Provided individual and marital counseling to D.S. and the mother. He testified that:
- D.S. missed numerous therapy appointments.
- D.S. ceased all contact with his office after May 2024.
Harrison County Day Report employee – Testified that:
- D.S. missed twenty-five scheduled drug screens.
- He tested positive for marijuana on eight occasions before he obtained a medical cannabis card in June 2024.
Harrison County Community Corrections employee – Reported that:
- D.S. attended only one anger management class.
- He failed to complete the anger management program.
CPS worker – Testified that:
- A domestic violence incident between D.S. and the mother occurred in April 2024—after D.S. had completed a domestic violence course.
- After a supervised visit, D.S. drove around a DHS building shouting obscenities at the biological father of several of the children.
- In the CPS worker’s view, D.S. had not successfully completed his improvement period and termination of his custodial rights was recommended.
D.S.’s own testimony – He admitted that:
- He drank alcohol during the improvement period despite a prohibition.
- He did not complete the anger management program.
- He failed to complete individual or marriage counseling.

C. Circuit Court Findings and Disposition

The circuit court made detailed findings, including that D.S.:

Failed to complete individual and marital counseling as ordered.
Tested positive for marijuana before obtaining a medical cannabis card.
Failed to appear for drug screens on at least twenty-five occasions.
Failed to maintain employment.
Failed to maintain stable housing.
Failed to comply with the recommendations contained in the parental fitness evaluation.

The circuit court concluded that:

There was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future.
Termination of D.S.’s custodial rights was necessary to serve the children’s best interests, particularly to allow them to achieve permanency.
D.S. would have no post-dispositional contact with the children.

The mother’s and biological fathers’ parental rights were also terminated (not the subject of this appeal), and the permanency plan for the children is adoption in their current placement.

D. Supreme Court’s Holding

On appeal, D.S. raised three main points:

The circuit court erred in terminating his custodial rights because he had “substantially, although not fully” complied with his post-adjudicatory improvement period.
The circuit court erred in failing to grant him a post-dispositional improvement period.
The circuit court erred in prohibiting post-termination contact between him and the children.

The Supreme Court of Appeals:

Affirmed the termination of custodial rights, holding that the record supported the circuit court’s findings that D.S. failed to comply with his improvement period, and that there was no reasonable likelihood the conditions could be corrected in the near future.
Rejected the argument regarding a post-dispositional improvement period because D.S. conceded that he did not file a written motion, which is a prerequisite under State ex rel. P.G.-1 v. Wilson.
Declined to address the challenge to the denial of post-termination contact because D.S. cited no supporting authority, in violation of Rule 10(c)(7) of the Rules of Appellate Procedure.

III. Analysis

A. Legal and Factual Background in Context

This case fits squarely within West Virginia’s statutory framework for handling abuse and neglect proceedings. A few features are noteworthy:

Status of D.S. – He is not a biological parent but a “custodian”: the mother’s boyfriend at petition filing and later her husband. West Virginia’s abuse and neglect statutes apply not only to legal parents but also to custodians and guardians whose care and decisions affect the child’s welfare.
Nature of abuse – The underlying abuse was a physical assault—slapping an eleven-year-old child across the face—which D.S. admitted was inappropriate discipline. By operation of law, the risk and conditions of abuse extended to all children in the same household.
Improvement period – D.S. was given a post-adjudicatory improvement period, a central rehabilitative tool in West Virginia child welfare law, designed to afford a meaningful opportunity to correct the identified conditions.
Outcome – Repeated failures to comply with the improvement period—and additional concerning behavior during that period, including domestic violence and anger-based incidents—convinced the circuit court, and ultimately the Supreme Court, that termination was warranted.

The case thus presents a classic scenario: an admitted incident of physical abuse followed by a structured opportunity to rehabilitate, and ultimately the judicial assessment of whether that opportunity was used effectively or squandered.

B. Statutory and Precedential Framework

1. Standard of Review: In re Cecil T.

The Court reiterates the familiar two-tiered standard of review from In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011):

Findings of fact by the circuit court in abuse and neglect proceedings are reviewed under a clearly erroneous standard.
Conclusions of law are reviewed de novo.

This standard gives significant deference to the circuit court’s credibility determinations and factual inferences, particularly when multiple witnesses testify regarding compliance, behavior, and risks to children. The Supreme Court will not reweigh evidence but asks whether the factual findings are supported by the record and whether the legal standards were correctly applied.

2. Termination of Custodial Rights: W. Va. Code § 49-4-604(c)(6) and (d)(3)

West Virginia Code § 49-4-604(c)(6) authorizes the termination of parental, custodial, or guardianship rights:

Upon 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 such termination is necessary for the welfare of the child.

Section 49-4-604(d)(3) elaborates on what constitutes “no reasonable likelihood” that conditions can be substantially corrected. This includes situations where:

The individual has “not responded to or followed through with a reasonable family case plan or other rehabilitative efforts” designed to reduce or prevent the abuse or neglect.

In this case:

The improvement period and family case plan were clearly laid out and included therapy, drug screening, parenting classes, abstinence from substances, employment, and stable housing.
D.S. failed to follow through with key components of that plan—missing therapy appointments, drug screens, anger management sessions, and failing to maintain employment and housing.
The Court explicitly ties these failures to § 49-4-604(d)(3), citing its own recent precedent in In re K.L..

3. Importance of Improvement Period Compliance: In re K.L.

The Court cites In re K.L., 247 W. Va. 657, 885 S.E.2d 595 (2022), for the proposition that a parent’s or custodian’s:

“failure to participate in his or her improvement period is a statutorily-recognized basis upon which this Court regularly affirms termination of parental rights.”

In re K.L. underscored that:

Improvement periods are not mere formalities; they are substantive opportunities for change.
A pattern of nonattendance, missed screens, or refusal to engage signals an inability or unwillingness to correct the conditions of abuse or neglect.

By invoking K.L., the Court situates D.S.’s case within a line of decisions holding that meaningful, consistent engagement with services is required, not selective or partial participation.

4. Written Motion Requirement for Improvement Periods: State ex rel. P.G.-1 v. Wilson

Regarding the argument that the circuit court erred in not granting a post-dispositional improvement period, the Court quotes syllabus point 4 (in part) of State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021):

“A circuit court may not grant a[n] . . . improvement period under W. Va. Code § 49-4-610 . . . unless the respondent to the abuse and neglect petition files a written motion requesting the improvement period.”

Here:

D.S. conceded that he did not file a written motion for a post-dispositional improvement period.
Under P.G.-1, the circuit court therefore lacked authority to grant such an improvement period sua sponte.
The Supreme Court treats this as dispositive, effectively foreclosing D.S.’s argument.

This reaffirms that the procedural requirement is not a technicality: a respondent seeking an improvement period at any phase must make a clear, written, timely request.

5. Adequate Briefing and Citation Requirements: W. Va. R. App. P. 10(c)(7)

Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that an appellate brief include:

Argument clearly presenting the points of fact and law.
The applicable standard of review.
Citations to supporting authority.

D.S. argued that the circuit court erred by prohibiting post-termination contact but cited no authority for this proposition. The Court, therefore, simply declined to address the assignment of error, expressly invoking Rule 10(c)(7).

This reinforces a recurring message from the Court:

Assignments of error must be fully developed, with legal authority and reasoning.
Mere assertions, unsupported by citations or meaningful analysis, may be deemed waived.

C. The Court’s Legal Reasoning

1. Termination Despite “Substantial” but Incomplete Compliance

D.S.’s primary contention was that the circuit court should not have terminated his custodial rights because he had “substantially, although not fully,” complied with his improvement period. The Supreme Court rejected this for two interrelated reasons:

Factual findings of noncompliance were supported by the record.
Partial or sporadic compliance does not negate a statutory finding of “no reasonable likelihood” of correction where core conditions remain unaddressed.

The Court emphasizes that, under § 49-4-604(d)(3), a person fails the statutory standard where they have “not responded to or followed through with” a reasonable case plan or rehabilitative efforts. The record showed:

Missed therapy and counseling sessions, and ultimate cessation of contact with the therapist.
Twenty-five missed drug screens and multiple positive marijuana tests before a medical card was obtained.
Failure to complete anger management programming.
A domestic violence incident after completing a domestic violence course—evidence suggesting that whatever education was received did not translate into behavioral change.
Failure to maintain employment and stable housing.
Disrespectful, aggressive conduct (driving around the DHS building shouting obscenities at the biological father), reflecting unresolved anger issues.

Importantly, the Court does not hold that any deviation from the improvement period’s exact terms mandates termination. Rather, it focuses on:

The number and kind of failures.
Their direct relation to the underlying concerns: anger, violence, substance use, instability.
The fact that significant concerns persisted during the improvement period.

Viewed through the deferential “clearly erroneous” standard applied to factual findings, the Supreme Court holds that the circuit court was well within its discretion in concluding that:

D.S. had not substantially followed through with the case plan.
There was no reasonable likelihood that the conditions could be substantially corrected in the near future.

Once those statutory conditions were satisfied, the decision then turned on the children’s best interests—including the need for stability and permanency—which the Court held were served by termination.

2. Best Interests and Permanency for the Children

Although the memorandum decision does not engage in an extended best-interest analysis, its reference to the children’s need for “permanent placement” and its approval of the plan for adoption in the current placement underscores core principles:

Child welfare proceedings are not open-ended; the law emphasizes timely permanency.
The Court has consistently treated indefinite improvement periods or repeated extensions as disfavored where the prospects for genuine change are poor.
The children’s need for a stable, permanent home environment supersedes a custodian’s interest in prolonged opportunities to rehabilitate when statutory criteria for termination are satisfied.

The combination of:

Ongoing instability and noncompliance by D.S., and
The availability of a stable adoptive placement in the children’s current home,

supports the conclusion that continuation of the legal relationship with D.S. would be contrary to their best interests.

3. Post-Dispositional Improvement Period: Strict Enforcement of Written Motion Requirement

D.S. also argued that the circuit court erred in not granting him a post-dispositional improvement period. However, he admitted on appeal that he did not file the required written motion.

The Supreme Court, citing P.G.-1 v. Wilson, reiterates that:

The written motion is a precondition to a circuit court’s authority to grant an improvement period.
Circuit courts may not grant such periods sua sponte or on informal, oral, or implied requests.

This highlights several practice points:

Respondent’s counsel must be vigilant in preserving their client’s options by timely filing written motions when additional improvement periods are sought.
Failure to comply with this procedural requirement effectively waives the request and limits the grounds for appeal.

4. Post-Termination Contact: Waiver by Inadequate Briefing

D.S. further challenged the circuit court’s denial of post-termination contact. However, he provided:

No standard of review.
No legal authority.
No substantive legal analysis.

Citing Rule 10(c)(7), the Supreme Court declined to address this argument.

The Court’s brief treatment of the issue is consistent with its broader jurisprudence: assignments of error inadequately briefed, particularly without legal authority, may be treated as waived. This reinforces the procedural rigor expected of appellate advocacy and preserves judicial resources for fully developed arguments.

D. Simplifying Key Legal Concepts

Several legal and procedural concepts are central to understanding this case. The following explanations are intended for clarity, especially for readers less familiar with child welfare law.

1. Abuse and Neglect

In West Virginia law:

“Abuse” involves harm or threatened harm to a child’s physical or mental welfare, which can include physical assault, extreme discipline, or exposure to violence.
“Neglect” involves failures to provide necessary care, supervision, or protection, placing the child’s health or welfare at risk.

Slapping an eleven-year-old child in the face—particularly in a way the adult later admits is inappropriate—falls squarely within the realm of abuse. Because all the children were in the same home, the risk of abuse is legally understood to extend to each of them.

2. Custodial Rights vs. Parental Rights

Parental rights belong to a child’s legal parents (biological or adoptive). They encompass decision-making authority and responsibility for the child’s care.
Custodial rights can be held by non-parent caregivers who have physical care and control of the child (e.g., stepparents, relatives, guardians), without necessarily being legal parents.

West Virginia’s abuse and neglect statutes allow the termination of not only parental rights but also custodial and guardianship rights. The same basic standards—“no reasonable likelihood” of correcting conditions, and best interests of the child—apply to all.

3. Adjudication vs. Disposition

Adjudication – The phase where the court determines whether the child is abused or neglected and whether the respondent is an abusing or neglecting parent/custodian. It focuses on past and present conditions and conduct.
Disposition – The phase where the court decides what to do in light of the adjudication: options may include returning the child home, continuing foster care, granting improvement periods, terminating rights, etc.

In this case:

D.S. was adjudicated an abusing and neglecting custodian in January 2024 based on his stipulation.
The dispositional decision to terminate his custodial rights was made in November 2024, after the improvement period and evidence of noncompliance.

4. Improvement Periods

An improvement period is a court-supervised timeframe during which the abusing or neglecting parent or custodian is given services and opportunities to correct the conditions that led to the abuse or neglect finding.

Relevant here:

Post-adjudicatory improvement period – Granted after adjudication but before final disposition. D.S. received this in February 2024.
Post-dispositional improvement period – May be granted after a dispositional order (in some circumstances), but only upon a written motion by the respondent under § 49-4-610 and cases like P.G.-1 v. Wilson.

These periods usually come with conditions: counseling, treatment, drug screening, parenting classes, stable housing and employment, etc. Success is measured not merely by attendance but by demonstrated change and reduction of risk.

5. “No Reasonable Likelihood” Standard

The statutory phrase “no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future” is a central threshold for termination.

It does not require absolute certainty that improvement is impossible. Rather, it asks whether:

Based on the respondent’s behavior, engagement, and progress during the improvement period,
A reasonable court could conclude that the parent or custodian is unlikely to change sufficiently in the near future to safely resume parental or custodial responsibilities.

Evidence of nonattendance, continued substance abuse, recurring violence, and ongoing instability often leads courts to find that this threshold has been met.

6. Best Interests of the Child

The “best interests” standard is the overarching principle in child welfare law. It considers the child’s:

Physical safety.
Emotional and mental well-being.
Need for permanence and stability.
Relationships with caregivers and siblings.

Even if a parent or custodian shows some improvement, the court must weigh whether continued involvement is compatible with the child’s need for a safe, stable, and permanent home. If not, termination may be ordered despite partial progress.

7. Memorandum Decision under Rule 21

This decision was issued as a memorandum decision under Rule 21, meaning:

The Court found that the appeal did not present novel legal questions or require oral argument.
The issues could be resolved by applying existing law to the specific facts.

While memorandum decisions are typically shorter and focused, they still reflect and reinforce the Court’s interpretation of statutes and prior case law, and they carry precedential value within that context.

E. Impact and Implications

1. For Custodians and Non-Parent Caregivers

The decision underscores that:

Non-parent custodians—such as stepparents, long-term partners, or other caregivers—are subject to the same abuse and neglect standards as parents.
Custodial rights can be terminated where the statutory criteria are met, including failure to comply with improvement periods.

Custodians who assume parental-like roles in children’s lives must recognize that courts will evaluate them under the same rigorous standards of safety, stability, and responsibility.

2. For Respondents in Improvement Periods

This case further develops the practical meaning of “participation” in an improvement period:

Attending a few sessions or partially engaging with services is insufficient if the core concerns (anger, substance use, domestic violence, instability) remain substantially unaddressed.
Patterns of missed drug screens are particularly damaging; courts often treat missed screens as equivalent to positive tests or as evidence of noncompliance.
Behavior during the improvement period—such as new incidents of domestic violence or aggressive conduct toward others—may be even more influential than past conduct, because it reflects the respondent’s current risk level and capacity to change.

In short, improvement periods demand sustained, good-faith engagement and measurable progress, not minimal or sporadic efforts.

3. For Attorneys Representing Parents and Custodians

Several lessons emerge for practitioners:

File written motions for all improvement periods – Do not rely on informal discussions or assumptions that the court will act on its own. P.G.-1 v. Wilson makes clear that the absence of a written motion is fatal.
Monitor and document compliance – Counsel must proactively ensure that clients understand their obligations, attend services, and maintain records of completion and progress.
Prepare for disposition with evidence of change – At disposition, evidence of genuine behavioral change, not just attendance, can be crucial.
Develop appellate arguments fully – Under Rule 10(c)(7), issues not supported by authority and reasoned argument may be deemed waived, as occurred with D.S.’s challenge to the denial of post-termination contact.

4. For Circuit Courts and DHS

The decision validates the approach often taken by circuit courts and DHS:

Detailed findings on noncompliance and risk factors are essential to withstand appellate review.
Relying on testimony from therapists, community corrections personnel, day report centers, and CPS workers is appropriate and persuasive.
Termination is a lawful and appropriate option where, after a reasonable improvement period, the caregiver has not meaningfully reduced the risk of harm.

The Court’s deference to the circuit court’s findings, based on thorough evidentiary development, signals that trial courts that carefully document their reasoning can expect a relatively high degree of appellate support.

5. Policy Perspective: Permanency Over Indefinite Rehabilitation

At a policy level, the decision is consistent with the broader shift in child welfare law toward prioritizing timely permanency for children over indefinite rehabilitative periods for adults. While improvement periods aim to give parents and custodians a fair opportunity to correct problems, they are not unlimited. When:

Risk factors persist,
Services are not meaningfully utilized, and
Children have available permanent homes,

the law favors final resolution and stability for the children.

IV. Conclusion

In re N.M., B.M., C.M., P.M., A.H., and Z.H. does not break new doctrinal ground, but it provides a clear and instructive reaffirmation of several key principles in West Virginia abuse and neglect law:

Termination of custodial rights is appropriate where a custodian fails to comply meaningfully with a reasonable improvement period and where there is no reasonable likelihood that the conditions of abuse and neglect can be corrected in the near future.
Partial or sporadic compliance—especially when accompanied by ongoing drug issues, domestic violence, anger problems, and instability—cannot prevent termination when the statutory criteria are satisfied and the children’s best interests require permanency.
Written motions are mandatory for improvement periods under § 49-4-610. Courts cannot grant post-dispositional improvement periods absent such motions, and respondents who fail to file them cannot credibly complain on appeal that none was granted.
Adequate appellate briefing, including citation to authority and reasoned argument, is required under Rule 10(c)(7); unsupported claims, such as D.S.’s challenge to the denial of post-termination contact, will not be addressed.

For practitioners and courts alike, the decision is a reminder that abuse and neglect proceedings are both legally structured and intensely fact-driven. Success in maintaining or regaining custodial or parental rights depends on robust, documented engagement with services, demonstrable change in behavior, and careful compliance with procedural rules. Above all, the decision reaffirms that the best interests and long-term welfare of children remain paramount in West Virginia’s child protection system.