Second Post-Adjudicatory Improvement Periods Require Proof of a Substantial Change in Circumstances Under W. Va. Code § 49-4-610(2)(D)

1. Introduction

In re J.S.-1 arises from an abuse and neglect proceeding in Kanawha County involving J.S.-1, a child born drug-affected, and petitioner father J.S.-2. The West Virginia Department of Human Services (“DHS”) initiated the case after the newborn tested positive for multiple controlled substances, alleging the father failed to protect the child and later alleging the father’s own substance use and dangerous home conditions.

The central appellate issue was narrow: whether the circuit court erred by denying the father’s motion for a second post-adjudicatory improvement period and terminating parental rights. The Supreme Court affirmed, emphasizing the heightened statutory showing required for an additional improvement period after one has already been granted and terminated.

2. Summary of the Opinion

The Court affirmed the July 9, 2025, dispositional order terminating the father’s parental rights and denying a second post-adjudicatory improvement period. Applying an abuse-of-discretion standard, the Court held the father failed to satisfy the governing statutory prerequisites for a second improvement period—most notably, he did not demonstrate a “substantial change in circumstances” since his initial improvement period and did not show he was likely to fully participate in a further improvement period.

3. Analysis

3.1 Precedents Cited

• In re K.A., 251 W. Va. 626, 915 S.E.2d 520 (2025) (Syl. Pt. 1)
  • How it was used: The Court relied on In re K.A. for the standard of review: a circuit court’s decision to grant or deny a post-adjudicatory improvement period is reviewed for abuse of discretion.
  • Influence on outcome: This deferential standard mattered because the record contained evidence supporting the circuit court’s findings (continued positive drug screens, unsafe/unsanitary home conditions, lack of progress on required competencies like transportation and stable income). Under abuse-of-discretion review, the Supreme Court focused on whether the circuit court’s decision was reasonable and grounded in the evidence and law, not whether another outcome was possible.
• In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002)
  • How it was used: The Court cited In re Tonjia M. for the principle that circuit courts have discretion to refuse to grant an improvement period “when no improvement is likely.”
  • Influence on outcome: The citation reinforced that improvement periods are not automatic entitlements. Where a parent’s performance shows stagnation or deterioration, the circuit court may conclude further time/services are unlikely to correct conditions “in the near future,” supporting both denial of an additional improvement period and termination when statutorily justified.

3.2 Legal Reasoning

The Court’s reasoning is best understood as a two-step statutory application under West Virginia Code § 49-4-610:

1. Baseline requirement for an improvement period: Under § 49-4-610(2)(B), a post-adjudicatory improvement period may be granted only if the parent proves by clear and convincing evidence that the parent is likely to fully participate.
2. Heightened requirement for a second improvement period: Because the father had already received a post-adjudicatory improvement period (later terminated after renewed positive drug screens), § 49-4-610(2)(D) controlled. That provision requires the parent to demonstrate that since the initial improvement period the parent experienced a substantial change in circumstances and, due to that change, is likely to fully participate in a further improvement period.

The Court found the father’s appeal deficient in a legally decisive way: he did not address (and did not attempt to prove) the statutory “substantial change in circumstances” requirement for a second improvement period. The record also supported the opposite conclusion: conditions did not materially improve and in some respects worsened—continued positive drug screens; persistent or recurring hazardous living conditions; lack of a driver’s license and vehicle despite the child’s medical needs; failure to verify employment; and limited demonstrated gains in parenting capacity.

On that evidentiary foundation, the circuit court concluded (1) the father was not likely to successfully complete another improvement period, (2) there was no reasonable likelihood the conditions of abuse and neglect could be corrected in the near future because he failed to follow through with reasonable services, and (3) termination was in the child’s best interests. The Supreme Court held these conclusions fell within the circuit court’s discretion and aligned with § 49-4-610 and the discretionary principles reiterated in In re Tonjia M..

3.3 Impact

Although issued as a memorandum decision, In re J.S.-1 reinforces several practical rules likely to shape litigation strategy and trial-court decision-making in West Virginia abuse and neglect cases:

• Second improvement periods are meaningfully harder to obtain: After an initial improvement period, the parent must do more than show attendance or willingness; the parent must demonstrate a post-initial, substantial change that supports renewed confidence in full participation.
• Litigation focus will sharpen on “substantial change” evidence: Parents seeking a second improvement period should expect courts (and DHS/guardians) to test whether the parent can point to concrete, verifiable changes—e.g., sustained sobriety, stable housing, verified income, completion of treatment, and demonstrated capacity to meet a child’s specialized needs.
• Noncompliance and regression weigh heavily: The decision underscores that renewed substance use, unsafe housing, and failure to complete essential steps (like transportation needs tied to the child’s medical care) can justify denying more time even if visitation is positive and some services are attended.

4. Complex Concepts Simplified

• Post-adjudicatory improvement period: A court-supervised opportunity after a parent has been adjudicated (found) to have abused or neglected a child, during which the parent must complete specific services and demonstrate behavioral change.
• Clear and convincing evidence: A high level of proof—more than “more likely than not,” less than “beyond a reasonable doubt”—requiring the evidence to be highly and substantially more probable to be true.
• Substantial change in circumstances (for a second improvement period): A meaningful, concrete change occurring after the first improvement period—such as sustained sobriety or stable, safe housing—that materially alters the parent’s ability and likelihood to comply. Mere intent, partial participation, or short-lived improvement generally will not suffice.
• Abuse of discretion (appellate review): The appellate court will not substitute its judgment for the trial court’s if the trial court’s decision was within the range of reasonable outcomes supported by the facts and law.

5. Conclusion

In re J.S.-1 confirms a clear operational rule in West Virginia abuse and neglect practice: once a parent has already received an improvement period, a second post-adjudicatory improvement period requires proof of a substantial change in circumstances and a renewed showing—by clear and convincing evidence—of likely full participation under W. Va. Code § 49-4-610(2)(D). Where the record shows continued substance use, unsafe housing, stalled progress, and unmet prerequisites for safe parenting, the circuit court acts within its discretion in denying further time and proceeding to termination when the child’s best interests so require.