Rule 5 Forbids Continuances for Pending Criminal Bond Proceedings; Acknowledgment of Neglect Is Prerequisite to Improvement Period — Commentary on In re N.S. (W. Va. 2025)

Introduction

In a memorandum decision issued on September 30, 2025, the Supreme Court of Appeals of West Virginia affirmed the Harrison County Circuit Court’s termination of the parental and custodial rights of D.S. to his child, N.S. The Department of Human Services (DHS) alleged that D.S. exposed the child to a drug-endangered environment and failed to provide adequate supervision. After adjudication for neglect based on D.S.’s admitted fentanyl and methamphetamine use while responsible for the child, the circuit court denied a continuance of the dispositional hearing sought to await the outcome of a criminal bond reduction hearing, refused a post-adjudicatory improvement period, rejected “Disposition 5” (a less restrictive alternative to termination), and terminated D.S.’s rights.

On appeal, D.S. argued three principal errors: (1) the court should have continued disposition or held its ruling in abeyance pending the bond hearing; (2) he should have been granted a post-adjudicatory improvement period; and (3) the court should have selected a less restrictive alternative to termination. The Supreme Court rejected each argument and affirmed.

While the decision primarily applies well-settled principles, it distinctly reinforces two practical rules for abuse-and-neglect practice in West Virginia: first, Rule 5 of the Rules of Procedure for Child Abuse and Neglect Proceedings bars delay of abuse/neglect timelines to await criminal case developments (including bond); and second, a parent’s failure to acknowledge neglect and to engage—both before and during incarceration—defeats the statutory predicate for a post-adjudicatory improvement period, paving the way for termination without intermediate dispositions when there is no reasonable likelihood of correction in the near future.

Summary of the Opinion

The Court affirmed termination of D.S.’s parental and custodial rights. It held:

No abuse of discretion in denying a continuance/abeyance: Under Rule 5, abuse-and-neglect proceedings shall not be delayed pending criminal proceedings. Seeking a delay to await a bond reduction hearing is squarely contrary to Rule 5 and is not a “justifiable request for delay.”
Improvement period properly denied: West Virginia Code § 49-4-610(2)(B) requires a parent to demonstrate, by clear and convincing evidence, a likelihood of full participation. D.S. failed to acknowledge the neglect, had been absent from the case prior to incarceration despite publication service and a pre-petition safety plan, and made no outreach to DHS or the child even after incarceration (despite the ability to write or call). The record supported that he was unlikely to participate meaningfully.
Termination without less restrictive alternatives was proper: Where there is “no reasonable likelihood” that conditions of neglect can be corrected in the near future and termination is necessary for the child’s welfare, courts may terminate without employing intermediate dispositions (W. Va. Code § 49-4-604(c)(6); In re Kristin Y.). The Court rejected D.S.’s reliance on the mother’s successful reunification, reaffirming that one parent’s fitness does not immunize the other’s parental rights from termination (In re Emily).
Cecil T. analysis not required: Because the circuit court relied on multiple factors beyond incarceration (e.g., pre-incarceration absence, denial of neglect, lack of contact), the specialized incarceration-only analysis from In re Cecil T. was not triggered.

Detailed Analysis

Precedents and Authorities Cited

Rule 5, W. Va. R. P. Child Abuse & Neglect Proc. Proceedings should not be delayed “pending the initiation, investigation, prosecution, or resolution of criminal proceedings.” The Court treated a requested continuance awaiting a bond determination as a prohibited delay under Rule 5. This is the doctrinal anchor for denying continuances tied to criminal docket events.
In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996): Continuances are discretionary; reversal requires an “unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay” (quoting Morris v. Slappy, 461 U.S. 1). Here, Rule 5 made the delay unjustifiable.
In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): Provides the standard of review (clear error for facts; de novo for law). Syllabus point 3 requires a tailored analysis when incarceration is the sole factor at disposition. The Court held that standard inapplicable because other non-incarceration factors drove the outcome.
W. Va. Code § 49-4-610(2)(B): Post-adjudicatory improvement period requires a parent to demonstrate, by clear and convincing evidence, a likelihood of full participation. Circuit courts may deny when improvement is unlikely (In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002)).
In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013), and In re Charity H., 215 W. Va. 208, 599 S.E.2d 631 (2004): A parent must recognize and acknowledge the abusive/neglectful conduct to remedy it; without acknowledgment, the problem is “untreatable.” This principle is central to denying improvement periods to parents who minimize or deny their conduct.
W. Va. Code § 49-4-604(c)(6) and (d): Allows termination when there is no reasonable likelihood of substantial correction in the near future and termination is necessary for the child’s welfare. Section (d) defines “no reasonable likelihood” as an inadequate capacity to solve the problems on one’s own or with help, based on evidence.
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), and In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980): Courts may terminate without employing less restrictive alternatives when no reasonable likelihood of correction exists.
In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000): One parent’s fitness does not automatically preserve the other parent’s rights where that parent’s conduct endangers the child and conditions are not expected to improve.
W. Va. Code § 49-4-601(e)(4): Authorizes service by publication when appropriate, which the record reflects was used in October 2023 to notice D.S. of the adjudicatory hearing.

Legal Reasoning and Application

1) Denial of Continuance or Abeyance Pending Bond Reduction

The dispositive authority is Rule 5: abuse-and-neglect proceedings should not be delayed due to criminal matters. D.S. sought a continuance or abeyance to await a bond reduction hearing connected to felony charges, hoping that release would allow him to engage in services. The Court treated that request as facially at odds with Rule 5, which prioritizes children’s safety and permanency over parallel criminal timelines. Applying the Tiffany Marie S. abuse-of-discretion framework, the Court reasoned the request was not “justifiable” because it ran into Rule 5’s categorical policy. There was thus no “unreasoning and arbitrary insistence upon expeditiousness”—the opposite was true: the court honored the rule’s mandate for expeditiousness for the child’s sake.

Notably, the Court also referenced the child’s tender years and the speculative nature of release on bond. Even apart from Rule 5, a continuance premised on uncertainty in the criminal proceeding’s outcome is weakly grounded; Rule 5 makes it effectively non-starter in this context.

2) Denial of Post-Adjudicatory Improvement Period

The statutory predicate under § 49-4-610(2)(B) is demanding: the parent must show by clear and convincing evidence that he is likely to fully participate. The circuit court found—and the Supreme Court accepted—that D.S. did not meet that burden for several reasons:

Failure to acknowledge neglect: D.S. admitted using fentanyl and methamphetamine while caring for N.S., sometimes when he was the child’s emergency decision-maker, yet he denied that his conduct impaired his judgment or created a drug-endangered environment. Under Timber M. and Charity H., this lack of acknowledgment renders the problem “untreatable,” undermining any likelihood of successful participation.
Pre-incarceration absence from the case: Despite publication service in October 2023 and a pre-petition safety plan that placed the child with a family member due to his active substance abuse, D.S. did not participate. He was “wholly absent” until his arrest and incarceration.
No meaningful engagement during incarceration: Although incarceration can limit services, it does not prevent all contact. The court found D.S. did not reach out to DHS or the child, or send letters/cards (despite commissary funds). The circuit court specifically noted that incarceration is “no guarantee of sobriety or rehabilitation,” undercutting any claim that confinement alone evidenced progress.

These findings collectively support the conclusion that D.S. was unlikely to fully participate in an improvement period. The Court emphasized that circuit courts have discretion to deny improvement periods where improvement is unlikely (Tonjia M.).

3) Termination Without Less Restrictive Alternatives (Disposition 5 Rejected)

The circuit court concluded there was no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future, and that termination was necessary for the child’s welfare (W. Va. Code § 49-4-604(c)(6) & (d)). On those findings, termination is authorized without employing less restrictive alternatives (Kristin Y.; R.J.M.). The Supreme Court found “ample evidence” for these conclusions, including D.S.’s denial of neglect, prolonged non-participation, and post-incarceration inaction.

The Court also rejected the argument that termination was premature because the child was placed with kin and the mother was successfully reunifying. As In re Emily makes clear, one parent’s fitness does not immunize the other parent from the consequences of his own neglect. Termination can proceed when warranted by the unfit parent’s conduct and prognosis, even if the other parent is progressing.

4) Service by Publication and Due Process Context

D.S. implied that his late personal service (March 2024) excused his pre-incarceration absence. The Court underscored that publication service in October 2023 satisfied statutory notice and that D.S. had already engaged in a safety plan before the petition, showing knowledge of DHS involvement. Additionally, his counsel appeared at multiple hearings and made ongoing efforts to contact him. These facts mitigate due-process concerns and support the circuit court’s findings about his lack of engagement.

5) The “Cecil T.” Incarceration-Only Analysis

D.S. argued the circuit court failed to conduct a “Cecil T.” analysis—which is required where incarceration is the only factor considered in assessing a parent’s ability to remedy conditions in a reasonable time. The Supreme Court rejected this, noting the circuit court relied on multiple non-incarceration factors: pre-incarceration absence, failure to acknowledge neglect, and lack of post-incarceration contact with DHS/child. Because incarceration was not the sole basis, the specialized Cecil T. inquiry was unnecessary.

Impact and Practice Implications

Although a memorandum decision, the Court’s reasoning carries clear practical guidance:

Continuances tied to criminal case milestones (including bond) will fail under Rule 5. Counsel should not expect abeyance or delay of child-welfare timelines to await criminal developments. If a parent’s release is speculative, that further militates against continuance.
Acknowledgment is the gateway to services. Parents who deny that their conduct constitutes neglect—or who minimize the risk their behavior creates—face steep odds obtaining improvement periods. Practitioners should prioritize early, documented acknowledgment of the issues and a credible, concrete plan for treatment.
Incarceration is not progress. Courts will not credit confinement as sobriety or rehabilitation. Parents must use available means during incarceration to demonstrate engagement (letters, classes, treatment, contact with DHS), or courts may infer continued incapacity to correct conditions.
Non-participation prior to incarceration matters. Publication service, counsel’s outreach, and pre-petition safety plans will be considered in assessing whether a parent chose not to engage. That history can be decisive at disposition.
Termination may proceed even when the other parent reunifies. The child’s permanency and safety interests permit terminating one parent’s rights if that parent cannot correct conditions, regardless of the other parent’s fitness (In re Emily).
No “Cecil T.” shield if there are other deficiencies. The specialized incarceration-only analysis is inapplicable when the record reflects broader, independent reasons the parent cannot correct conditions.

Complex Concepts Simplified

Rule 5 (Child Abuse and Neglect Proceedings): A timing rule that prioritizes child-welfare cases. It forbids delaying those cases to wait for criminal investigations or court events (like trials or bond hearings) involving the parent.
Post-Adjudicatory Improvement Period: A court-ordered, time-limited chance for a parent to receive services and demonstrate change after the court has found abuse/neglect (adjudication). To get one, a parent must show clearly that they will fully participate and that services will help remedy the conditions.
“Disposition 5” (W. Va. Code § 49-4-604(c)(5)): A less restrictive dispositional option than termination. It typically involves transferring temporary custody to DHS or a suitable caregiver, with court-ordered services and oversight, while leaving parental rights intact. It is not required when the court finds no reasonable likelihood of correction and that termination is necessary for the child’s welfare.
Termination Under § 49-4-604(c)(6): The most severe disposition. It requires findings that (a) there is no reasonable likelihood the parent can substantially correct the conditions in the near future, and (b) termination is necessary for the child’s welfare.
“No Reasonable Likelihood” (§ 49-4-604(d)): Means the parent has shown an inadequate capacity to solve the abuse/neglect problems on their own or with help, based on evidence before the court.
Service by Publication (§ 49-4-601(e)(4)): When personal service can’t be achieved despite due diligence, the court may allow notice to be given via publication. This legally counts as notice for moving the case forward.
Drug-Endangered Environment: A setting where a child is exposed to drug use, production, or trafficking, or where caregiver impairment due to substance abuse endangers the child’s safety and welfare.
Guardian ad Litem (GAL): A lawyer appointed to represent the child’s best interests in the proceedings.
“Tender Years”: A descriptive term indicating that the child is very young, which can heighten courts’ concerns about safety and the need for swift, stable caregiving arrangements.
“Cecil T. analysis”: A case-specific framework sometimes required when incarceration is the only factor preventing remediation. It examines whether the parent’s incarceration alone, considering duration and circumstances, should preclude reunification. It is unnecessary when other independent factors establish the parent’s inability to correct conditions.

Conclusion

In re N.S. reaffirms two central features of West Virginia abuse-and-neglect law. First, Rule 5’s command against delaying child-welfare cases for criminal proceedings is robust—continuances or abeyance requests premised on criminal bond outcomes are disfavored and, as here, properly denied. Second, a parent’s candid acknowledgment of neglect and demonstrated engagement—before and during incarceration—are indispensable to earning a post-adjudicatory improvement period. Absent such proof, and where the record shows no reasonable likelihood of correction in the near future, termination without intermediate dispositions is appropriate and lawful.

The decision underscores that child safety and timely permanency take precedence. A parent’s speculative prospects in criminal court cannot postpone the child’s trajectory toward stability. For practitioners, In re N.S. is a clear reminder: build a record of acknowledgment, prompt engagement, and concrete steps toward rehabilitation—or expect courts to proceed to termination when statutory criteria are met, even if the other parent is successfully reunifying.