Substantial-Change Requirement for Successive Improvement Periods After FTC Noncompliance

1. Introduction

Case: In re S.A.-1, D.A.-1, S.A.-2, K.A., and R.A.
Court: Supreme Court of Appeals of West Virginia
Date: March 3, 2026

This abuse-and-neglect appeal arose after the Randolph County Circuit Court terminated Father D.A.-2’s parental rights to five children. The Department of Human Services (“DHS”) alleged abuse and neglect based on Father’s mental instability, domestic violence exposure, controlled-substance abuse, and lack of stable housing and employment. Father stipulated at adjudication to substance abuse, domestic violence, and inadequate housing.

The key appellate issues were whether the circuit court (1) erred in denying Father’s request for a post-dispositional improvement period after he had already received and lost a post-adjudicatory improvement period tied to participation in Family Treatment Court (“FTC”), and (2) erred in terminating parental rights.

2. Summary of the Opinion

The Supreme Court affirmed. It held that the circuit court acted within its discretion in denying a post-dispositional improvement period because Father failed to demonstrate a “substantial change in circumstances” after the initial improvement period, as required by statute, and remained unlikely to comply. The Court also affirmed termination because the record supported findings that there was no reasonable likelihood the conditions of abuse or neglect could be substantially corrected in the near future, and termination was necessary for the children’s welfare.

3. Analysis

A. Precedents Cited

  • Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
    The Court applied the governing appellate standards: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. This framing mattered because Father’s arguments largely sought to reweigh credibility (e.g., explanations for drug screens) and compliance evidence—areas where trial courts receive substantial deference.
  • In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002)
    The Court relied on this decision to reinforce that improvement periods are discretionary and may be denied “when no improvement is likely.” In this case, Father’s FTC discharge for nonparticipation and continued positive drug screens supported the trial court’s prediction that additional time would not yield meaningful change.
  • Syl. Pt. 5, in part, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980))
    These authorities supply West Virginia’s central termination rule: termination may occur without less restrictive alternatives when there is no reasonable likelihood the conditions can be substantially corrected and termination is necessary for the child’s welfare. The Court used this framework to reject Father’s implicit request for another incremental step (an additional improvement period) despite evidence of ongoing substance abuse and noncompliance.
  • In re K.L., 247 W. Va. 657, 667, 885 S.E.2d 595, 605 (2022)
    This case supported affirmance by treating failure to participate in an improvement period as a “statutorily-recognized basis” regularly justifying termination. The Court analogized Father’s lack of participation in FTC services and failure to follow through with treatment to the type of noncompliance that sustains termination findings.

B. Legal Reasoning

  1. Successive improvement periods require a statutory “substantial change in circumstances.”
    The Court anchored its analysis in W. Va. Code § 49-4-610(3)(D): after a parent has already received an improvement period, a later post-dispositional improvement period requires proof of a substantial change in circumstances making the parent likely to fully participate. Father pointed to prospective employment/housing and a brief rehab attempt. The circuit court, however, found those points outweighed by:
    • FTC discharge for lack of participation (missed or refused services including therapy, BIPP, relapse prevention, and in-patient treatment);
    • lack of post-termination engagement with DHS to restart services;
    • continued positive methamphetamine/amphetamine screens immediately before disposition, with increasing levels; and
    • credibility concerns (denial of use and denial of a drug problem despite prior stipulation).
    Given this record, the Supreme Court treated the denial as a proper exercise of discretion under In re Tonjia M..
  2. Termination was supported by statutory “no reasonable likelihood” findings tied to substance abuse and noncompliance.
    The Court applied W. Va. Code § 49-4-604(c)(6), which authorizes termination when there is no reasonable likelihood conditions can be corrected in the near future and termination is necessary for the child’s welfare. It then linked the evidence to the statutory examples in W. Va. Code § 49-4-604(d)(1), (3):
    • Habitual abuse/addiction to controlled substances (multiple positive screens near disposition and denial of use);
    • Failure to respond to or follow through with a reasonable case plan/rehabilitative efforts (FTC nonparticipation and no subsequent engagement).
    Because the circuit court also found termination in the children’s best interests, the Court held that less restrictive alternatives were not required under In re Kristin Y. / In re R.J.M..
  3. Procedural posture mattered: missing transcripts limited meaningful challenge to prior-hearing proof.
    The circuit court took judicial notice of prior testimony, yet the appeal appendix did not include transcripts of proceedings before the dispositional hearing. While the Court did not expressly base affirmance on waiver, the posture reinforced deference to the circuit court’s factual determinations and credibility findings.

C. Impact

  • Reinforces a strict evidentiary threshold for second-chance improvement periods. Parents seeking post-dispositional improvement periods after a failed initial improvement period must show more than intentions, short-lived treatment attempts, or future plans; they must show a demonstrable, credible, and sustained change that addresses the original conditions and indicates likely compliance.
  • FTC participation is treated as meaningful rehabilitative opportunity—FTC discharge can be dispositive. Where an improvement period is conditioned on FTC participation, failure to engage with FTC services supports both denial of additional improvement time and findings under § 49-4-604(d)(3).
  • Credibility and contemporaneous drug-screen evidence are central at disposition. Recent positive screens—especially with increasing levels and repeated denial—can undermine claims of improvement and support “no reasonable likelihood” determinations.
  • Affirms termination without incremental alternatives when statutory findings are met. The decision underscores that courts need not cycle through less restrictive options when the record supports statutory uncorrectability and best interests.

4. Complex Concepts Simplified

  • Improvement period: A court-ordered window for a parent to complete services (treatment, classes, counseling) to fix the problems that led to abuse/neglect findings.
  • Post-adjudicatory vs. post-dispositional improvement period: “Post-adjudicatory” occurs after the court decides a parent abused/neglected the child; “post-dispositional” occurs later, after the court reaches disposition (the long-term decision, including termination). A second improvement period after an earlier one is harder to obtain due to the statutory “substantial change” requirement.
  • Substantial change in circumstances (W. Va. Code § 49-4-610(3)(D)): Not a promise to do better; it requires objective, meaningful change since the last improvement period—enough to convince the court the parent will now comply.
  • No reasonable likelihood conditions can be substantially corrected (W. Va. Code § 49-4-604): A legal finding that the parent is unlikely to fix the problems soon—often shown through ongoing drug use, denial, and failure to follow treatment/case-plan steps.
  • Less restrictive alternatives: Options short of termination (e.g., extended improvement period, guardianship). These are not required when statutory termination findings are satisfied.
  • Judicial notice of prior testimony: The court can rely on evidence from earlier hearings without re-calling every witness, especially in ongoing child welfare cases.

5. Conclusion

In re S.A.-1, D.A.-1, S.A.-2, K.A., and R.A. consolidates two practical rules in West Virginia abuse-and-neglect litigation: (1) a parent who already received an improvement period must prove a genuine, substantial post-period change to earn a post-dispositional improvement period under W. Va. Code § 49-4-610(3)(D), and (2) when ongoing substance abuse and noncompliance establish “no reasonable likelihood” of correction under W. Va. Code § 49-4-604, termination may proceed without additional less restrictive alternatives. The decision highlights the evidentiary weight of FTC nonparticipation, recent drug screens, and credibility determinations at disposition.