Standards for Implicit Denial of Improvement Periods and Post-Termination Visitation in Child-Protective Proceedings

Introduction

This commentary analyzes the Supreme Court of West Virginia’s May 30, 2025 decision in In re Z.D.-1, Z.D.-2, Z.L.-1 and Z.L.-2 (No. 23-611). The case arises from long-standing child supervision concerns, including two separate accidental gunshot injuries suffered by the children in 2018 and 2021, culminating in child abuse and neglect proceedings against their mother (“Petitioner”). Key issues on second appeal were:

Whether the circuit court erred in implicitly denying a post-adjudicatory improvement period;
Whether termination of parental rights was appropriate without employing less restrictive alternatives;
Whether the court should have considered post-termination visitation in the best interests of the children.

The parties include Petitioner mother identified by initials only, the Department of Human Services (DHS), Guardian ad Litem, and the Kanawha County Circuit Court (Hon. Maryclaire Akers).

Summary of the Judgment

After two CPS interventions prompted by unsecured firearms and lack of supervision, an August 2021 petition led to adjudication of neglect and abuse. The circuit court’s May 18, 2022 dispositional order terminated Petitioner’s parental rights and denied post-termination visitation. This Court vacated that order for lack of specific findings and remanded. On remand, the court again terminated parental rights—finding repeated supervisory failures, non-participation in services, and no reasonable likelihood of correction—and summarily denied visitation.

The Supreme Court affirmed termination, holding:

The circuit court implicitly but properly denied an improvement period because Petitioner could not demonstrate, by clear and convincing evidence, likelihood of full participation in services.
Termination of parental rights was appropriate under West Virginia Code § 49-4-604(c) and established precedent when the parent cannot correct conditions of neglect absent less restrictive alternatives.
The summary denial of post-termination visitation was vacated and remanded: under In re Christina L., evidence of emotional bonds and children’s wishes must be developed, and specific findings made about best interests before refusing contact.

Analysis

Precedents Cited

McCormick v. Allstate Ins. Co. (197 W. Va. 415, 475 S.E.2d 507 (1996)), syllabus point 1: two-prong review (abuse of discretion for disposition; clearly erroneous for facts).
In re R.J.M. (164 W. Va. 496, 266 S.E.2d 114 (1980)), syllabus point 2: parental-rights termination may bypass less restrictive alternatives when no reasonable likelihood of correcting neglect or abuse.
In re Christina L. (194 W. Va. 446, 460 S.E.2d 692 (1995)), syllabus point 5: circuit courts may, in appropriate cases, consider post-termination visitation in the best interests of the child—examining emotional bonds and the child’s wishes.
In re Emily B. & Amos B. (208 W. Va. 325, 540 S.E.2d 542 (2000)): a parent is not unconditionally entitled to a post-adjudicatory improvement period; it is an opportunity to correct conditions of abuse/neglect.
In re S.W. (236 W. Va. 309, 779 S.E.2d 577 (2015)), syllabus point 1: reaffirming the two-prong standard of review.
In re N.R. (242 W. Va. 581, 836 S.E.2d 799 (2019)), syllabus point 5: reiterating the standard for termination without intervening alternatives.

These precedents shaped the Court’s analysis of improvement periods, termination standards, review thresholds, and the emerging area of post-termination visitation rights of children.

Legal Reasoning

The Court applied the deferential two-prong standard of review from McCormick (abuse of discretion for ultimate disposition; clearly erroneous for underlying facts). It then addressed three core issues:

1. Implicit Denial of Improvement Period

Under W. Va. Code § 49-4-610(2)(B), a circuit court may grant a post-adjudicatory improvement period only if the parent demonstrates by clear and convincing evidence an ability and willingness to fully participate. In re Emily B. clarifies that improvement periods are discretionary and contingent on likelihood of correcting harmful conditions. Here, despite prior services after the 2018 incident, Petitioner repeatedly failed to rectify unsafe supervision and failed to comply with drug screening or psychological evaluation orders. The Court concluded the circuit court implicitly denied the motion for lack of any showing Petitioner would fully engage in a subsequent improvement period.

2. Termination of Parental Rights

Consistent with In re R.J.M. and In re N.R., the Court found termination appropriate when a parent cannot correct neglectful conditions and there is no reasonable likelihood of substantial correction. The record showed two separate firearm injuries, repeated CPS involvement, incomplete case-plan compliance, and a pattern of minimal cooperation—just enough to delay out-of-home placement but insufficient to protect the children. Less restrictive alternatives were deemed futile in light of documented failures.

3. Post-Termination Visitation

Invoking In re Christina L., the Court held that even after termination, a child’s right to ongoing contact with an emotionally bonded parent must be evaluated separately. The Court emphasized that this right belongs to the child, not the parent, and requires inquiry into the child’s wishes (if mature enough) and evidence that contact would not harm the child. The circuit court’s blanket denial—“termination means termination”—without findings on bond or best interests, warranted remand for a fact-specific analysis.

Impact

This decision establishes several important guideposts for future dependency cases in West Virginia:

Circuit courts must make express findings—implicit denials of improvement periods are permissible but must be supported by record evidence that the parent cannot demonstrate likelihood of participation.
Termination orders must articulate why less restrictive alternatives are unworkable, citing specific case-plan noncompliance and repeated risk events.
Circuit courts may not summarily deny post-termination visitation. They must develop record evidence on emotional bonds and children’s preferences and explain why visitation would or would not serve each child’s best interests.

By clarifying these procedural and substantive requirements, the Court balances the State’s duty to protect children from harm against children’s ongoing need for emotional continuity.

Complex Concepts Simplified

Abuse of Discretion vs. Clearly Erroneous: Appellate courts defer to the trial court’s overall decision (“abuse of discretion”) and factual findings (“clearly erroneous”) unless they have no evidentiary support.
Improvement Period: A time-limited program of services (e.g., counseling, drug tests) designed to let a parent correct neglect or abuse issues. It is not automatic but granted only if the parent shows strong likelihood of full participation.
Dispositional Order: The trial court’s final ruling determining if parental rights continue, are suspended, or are terminated, and specifying any visitation or case plan.
Less Restrictive Alternatives: Options short of terminating parental rights—such as continued in-home services, supervised visitation, or guardianship with relatives—considered before the “most drastic remedy.”
Post-Termination Visitation: Even after a parent’s rights are cut off, children may have a right to see or communicate with a parent if they share an emotional bond and it serves the child’s best interests.

Conclusion

In re Z.D.-1, Z.D.-2, Z.L.-1 and Z.L.-2 refines West Virginia’s child-protection jurisprudence by:

Affirming that circuit courts may implicitly deny improvement periods when parents cannot show likely full participation;
Reiterating that termination of parental rights is appropriate when no reasonable likelihood exists to correct neglect or abuse after repeated interventions;
Mandating fact-specific findings before denying post-termination visitation, consistent with children’s best interests and emotional bonds.

These clarifications ensure that future trial courts will provide transparent, well-reasoned orders that withstand appellate scrutiny and best serve the welfare and stability of children in West Virginia’s child-protective system.