Strict Enforcement of the Fifteen-of-Twenty-Two-Month Foster Care Cap Absent Clear and Convincing Compelling Circumstances: In re B.S. (W. Va. 2025)

Introduction

In In re B.S., No. 24-732 (W. Va. Sept. 30, 2025), the Supreme Court of Appeals of West Virginia affirmed the Wayne County Circuit Court’s denial of a mother’s request to extend her post-dispositional improvement period and the termination of her parental rights. The case turns on the interaction between two statutory pillars of West Virginia’s child welfare law: (1) the availability and extension of improvement periods conditioned on substantial compliance and the child’s best interests; and (2) the statutory “fifteen of the most recent twenty-two months” cap on time a child spends in foster care absent clear and convincing proof of compelling circumstances. The Court held that extending the mother’s improvement period would violate the statutory time cap and that the record—marked by two relapses, ongoing involvement with a co-offending parent with domestic violence history, and weak parenting during supervised visits—supported a finding that there was no reasonable likelihood of remedying the neglect in the near future.

The petitioner mother (K.S.) sought more time to complete substance-abuse treatment after multiple relapses, while the Department of Human Services (DHS) opposed any extension, pressing the child’s right to timely permanency. The guardian ad litem supported the child’s best interests, and the circuit court ultimately terminated parental rights and set adoption by the foster family as the permanency plan. On appeal, the Supreme Court affirmed in a memorandum decision under Rule 21, concluding oral argument was unnecessary and the record clearly supported the lower court’s orders.

Summary of the Opinion

Applying a clear error standard to factual findings and de novo review to legal conclusions (Syl. Pt. 1, In re Cecil T.), the Court affirmed the denial of an extension of the mother’s post-dispositional improvement period and the termination of her parental rights. The Court emphasized:

Extension of an improvement period is limited by W. Va. Code § 49-4-610(9): courts may not allow improvement periods or extensions that cause a child to remain in foster care more than fifteen of the most recent twenty-two months unless there are compelling circumstances proven by clear and convincing evidence that such an extension is in the child’s best interests. Granting an extension here would have pushed foster care to at least seventeen months.
The petitioner’s two relapses (including one during treatment and while using with the child’s father), continued cohabitation with the father despite a domestic violence history, dishonesty about that relationship, and deficits in supervised parenting visits demonstrated a failure to substantially comply and undermined any near-term possibility of safe reunification.
Courts are not required to “exhaust every speculative possibility of parental improvement” before moving to disposition (Syl. Pt. 4, in part, In re Cecil T., quoting In re R.J.M.). The mother’s claim that she was close to graduating from treatment did not compel an extension.
Termination was authorized by W. Va. Code § 49-4-604(c)(6)—no reasonable likelihood of substantial correction in the near future and termination necessary for the child’s welfare—and consistent with Syl. Pt. 5 of In re Kristin Y. (termination without less-restrictive alternatives is permissible under these findings).
Compliance level during an improvement period is only one factor; the governing standard at disposition is the child’s best interests (Syl. Pt. 4, In re B.H.).

The Court refused to reweigh the evidence (In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025)) and affirmed the circuit court’s November 18, 2024, order.

Detailed Analysis

A. Precedents and Authorities Applied

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Provides two core guideposts: the standard of review (clear error for facts; de novo for law) and the principle that courts need not “exhaust every speculative possibility of parental improvement” before moving to disposition. The Court relied on Cecil T. to reject the mother’s argument that proximity to treatment completion justified an extension.
In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). Longstanding support for the principle quoted in Cecil T. that speculative future improvement does not bar disposition. R.J.M. also undergirds later holdings permitting termination without less-restrictive alternatives where statutory findings are met.
In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025). Reinforces the appellate function: the Supreme Court does not reweigh evidence or make credibility determinations. Applied here to reject the mother’s invitation to re-evaluate DHS’s evidence on parenting skills and relationship disclosures.
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Confirms that when there is no reasonable likelihood of substantial correction in the near future and termination serves the child’s welfare, courts may terminate without resort to less-restrictive alternatives. This aligns with W. Va. Code § 49-4-604(c)(6).
In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014). Clarifies that the degree of parental compliance during an improvement period is not dispositive; the child’s best interests govern the dispositional decision. The Court used this to deem the mother’s intermittent compliance insufficient against the child’s need for permanency and safety.

Statutory anchors:

W. Va. Code § 49-4-610(6) and (9). Subsection (6) permits extensions of improvement periods upon substantial compliance and consistency with the child’s best interests; subsection (9) imposes the fifteen-of-twenty-two-month cap unless compelling circumstances are proven by clear and convincing evidence.
W. Va. Code § 49-4-604(c)(6). Authorizes termination when there is no reasonable likelihood that abuse/neglect conditions can be substantially corrected in the near future and termination is necessary for the child’s welfare.

B. The Court’s Legal Reasoning

1. Denial of the Extension to the Post-Dispositional Improvement Period

The Court tied the denial to both the statutory time cap and the mother’s performance. Factually, the child would have remained in foster care for at least seventeen months if the improvement period were extended—beyond the fifteen-of-twenty-two-month statutory guardrail in § 49-4-610(9). No “compelling circumstances” were established by clear and convincing evidence to justify an exception. The mother’s improved outlook due to impending program completion was too speculative, particularly in light of two relapses, one occurring during treatment and while using with the child’s father, and continued cohabitation with that father notwithstanding a history of domestic violence and co-use.

On substantial compliance under § 49-4-610(6), although the circuit court once found “substantial compliance” earlier (when granting the post-dispositional improvement period), subsequent events changed the calculus: another relapse, ongoing risky relationship dynamics, and weak parenting during supervised visits (minimal interaction; failure to feed properly) demonstrated that, overall, the mother had not substantially complied in a way that would make further extension consistent with the child’s best interests. Coupled with the fact that the mother had never progressed to unsupervised visitation, DHS indicated reunification would still take months post-treatment, compounding delay.

Invoking Cecil T. and R.J.M., the Court underscored that courts need not chase “every speculative possibility” of improvement where the statutory cap and child’s best interests counsel decisively in the other direction.

2. Termination of Parental Rights

Turning to disposition, the Court affirmed under W. Va. Code § 49-4-604(c)(6). Two relapses—including one during treatment—rendered future success “speculative,” and the continuing relationship with the father, marked by domestic violence and prior co-using, undermined safety planning. The lack of demonstrable parenting competency in supervised settings and zero transition to unsupervised contact meant there was no reasonable likelihood of substantial correction in the near future.

With permanency overdue and the child’s welfare paramount, termination was necessary. Citing In re Kristin Y., the Court reiterated that less-restrictive alternatives (such as more services or guardianship arrangements) are not required where the statute’s “no reasonable likelihood” and “necessary for the child’s welfare” findings are supported by the record. In re B.H. reminded that compliance is but one factor; best interests control. In re D.S. foreclosed appellate reweighing of factual disputes.

C. The Decision’s Practical Impact

Tighter adherence to the 15-of-22-month cap. The Court’s application signals that absent clear and convincing “compelling circumstances,” courts should not extend improvement periods past the statutory time-in-care limit. The mere prospect of imminent program completion, without more, is insufficient.
Substance relapse during an improvement period is outcome determinative when paired with other risk factors. Multiple relapses—especially while in treatment and with a co-offending parent—strongly support findings that conditions cannot be corrected in the near future.
Relationship choices and candor matter. Continuing to reside with a co-offending partner who has a domestic violence history, and failing to be candid with DHS and the court about that relationship, weigh heavily against extensions and in favor of termination.
Visitation progression is a proxy for reunification readiness. The absence of any unsupervised visits late into the case signals slow or insufficient progress; courts may consider the additional runway needed for step-up visitation when assessing “near future” feasibility.
Memorandum decision as guidance. Although issued as a memorandum decision under Rule 21, the opinion offers clear guidance on how the Supreme Court expects trial courts to apply § 49-4-610(9) and § 49-4-604(c)(6). Practitioners should build or contest records accordingly.

Complex Concepts Simplified

Improvement period (post-adjudicatory vs. post-dispositional): An “improvement period” is court-supervised time allowing a parent to correct abuse/neglect conditions. A post-adjudicatory improvement period follows adjudication (when the court decides abuse/neglect occurred). A post-dispositional improvement period may be granted later, often after some progress, but before final disposition. Extensions require substantial compliance and must be in the child’s best interests.
Fifteen-of-twenty-two-month cap: To prevent foster care drift, § 49-4-610(9) generally prohibits improvement periods or extensions that keep a child in foster care for more than 15 of the most recent 22 months, unless the court finds “compelling circumstances” by clear and convincing evidence making an extension in the child’s best interests.
Clear and convincing evidence: A high evidentiary standard requiring proof that is highly and substantially more likely to be true than not. It is more demanding than “preponderance of the evidence,” though less than “beyond a reasonable doubt.”
No reasonable likelihood of correction in the near future: A statutory finding for termination that asks whether the parent can, in practical and timely terms, remedy the conditions that led to abuse/neglect. Patterns of relapse, unsafe relationships, and lack of parenting progression can support this finding.
Termination without less-restrictive alternatives: If the statutory criteria are met (no reasonable likelihood of correction; termination necessary for the child’s welfare), the court can terminate without first ordering other, lesser options such as continuing services or temporary custody arrangements.
Drug-affected birth: A newborn who experiences withdrawal or other complications due to in utero exposure to substances. Such circumstances can establish abuse/neglect and trigger DHS intervention.
Best interests of the child: The overarching standard in child welfare cases; it prioritizes the child’s safety, stability, and timely permanency over a parent’s generalized right to more time for rehabilitation.

Key Facts and Timeline

August 2023: DHS files petition alleging drug-affected birth of B.S.; mother enters treatment.
September 2023: Mother stipulates to substance abuse affecting parenting; court adjudicates.
November 2023: Court grants post-adjudicatory improvement period; mother later relapses after leaving treatment and using with the child’s father; admits domestic violence history with father; re-enters treatment.
May 2024: Court grants post-dispositional improvement period after earlier substantial compliance.
June 2024: Mother relapses again; treatment completion date bumped to January 15, 2025. DHS moves to terminate improvement period and parental rights; mother moves to extend.
November 2024: Final dispositional hearing. Evidence: minimal interaction at visits, failure to feed properly, ongoing cohabitation with father and lack of candor about the relationship; no unsupervised visits to date; extension would push foster care to at least 17 months.
November 18, 2024: Circuit court denies extension, terminates parental rights, sets permanency as adoption by foster family.
September 30, 2025: Supreme Court affirms (memorandum decision under Rule 21).

Practice Pointers

For parents: Early and honest disengagement from co-offending partners, consistent engagement in treatment without relapse, and demonstrable progress in parenting (including progression to unsupervised and then extended visits) are critical. Transparency with DHS and the court about relationships and living arrangements is essential.
For DHS and GALs: Document the timeline to establish the fifteen-of-twenty-two-month calculation; build a record on parenting deficits at visits, relapse chronology, relationship safety concerns, and the realistic timeline needed to get from treatment completion to reunification. Explain why further delay is not in the child’s best interests.
For circuit courts: Make explicit findings on § 49-4-610(9)’s time cap, whether “compelling circumstances” exist by clear and convincing evidence, and best interests. Where termination is ordered, tie findings to § 49-4-604(c)(6) and articulate why less-restrictive alternatives are not required in light of Kristin Y.

Conclusion

In re B.S. reinforces a disciplined application of West Virginia’s child welfare statutes, particularly the fifteen-of-twenty-two-month foster care limit and the termination standard when the prospect of remediation is speculative. The decision underscores that:

Extensions of improvement periods cannot run afoul of the statutory time cap absent clear and convincing “compelling circumstances,” and speculative program completion does not satisfy that standard.
Repeated relapses, unsafe relationships, and lack of parenting progress can collectively establish that there is no reasonable likelihood of correction in the near future.
At disposition, the child’s best interests—not the mere degree of parental compliance—govern, and termination may proceed without less-restrictive alternatives when statutory findings are met.

While issued as a memorandum decision, the Court’s reasoning offers clear, practical guidance to trial courts and practitioners: permanency timelines are real, and the law obliges courts to prioritize children’s stability and safety over speculative prospects of parental improvement. In this sense, In re B.S. will influence the handling of post-dispositional extensions and termination decisions across similar abuse and neglect cases in West Virginia.