Substantial Compliance Over Formal Specificity:
West Virginia Supreme Court Clarifies Family-Case-Plan Requirements and Permissible Negative Inference – Comment on In re H.L. (2025)

Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re H.L., No. 24-317 (July 30 2025), addresses the perennial tension between procedural precision and the overarching remedial purpose of child abuse and neglect proceedings. The matter arose from the termination of parental rights of C.M. (“Petitioner Mother”) to her child H.L. Central to the appeal were two complaints: (1) that the Department of Human Services (DHS) failed to include specific therapeutic treatment in its family case plans, allegedly rendering termination improper, and (2) that the circuit court impermissibly drew a negative inference from the mother’s decision not to testify at disposition.

While the Court ultimately affirmed termination, it used the occasion to clarify (a) that an absence of granular treatment directives in a family case plan will not justify reversal where the parent is demonstrably aware of the requirements and suffers no prejudice, and (b) that trial courts remain free to infer adversely from a parent’s silence so long as the agency otherwise carries its burden of proving grounds for termination by clear and convincing evidence.

Summary of the Judgment

The Court applied a mixed standard of review: clear-error review for facts, de novo for legal conclusions (In re Cecil T.).
Family case plans lacked specific treatment modalities (e.g., named providers, session frequency), but Petitioner Mother was already aware—through MDT meetings, psychological evaluation, and written improvement-period terms—of the precise behavioral changes required.
Given the absence of demonstrable prejudice, the procedural deficiency was deemed harmless. The Court relied on syllabus point 3 of In re Emily G. (vacatur appropriate only when the statutory process is “substantially disregarded or frustrated”).
The circuit court’s negative inference from the mother’s refusal to testify was upheld under syllabus point 2 of WVDHHR ex rel. Wright v. Doris S. The Court re-affirmed that an abuse-and-neglect proceeding is remedial, permitting civil inferences from silence.
On the merits, evidence of missed or hostile visits, inconsistent drug screening, and failure to cooperate supported the finding of “no reasonable likelihood” of correction.
Termination satisfied W. Va. Code § 49-4-604(c)(6) & (d)(1)-(3).

Analysis

Precedents Cited and Their Influence

In re Cecil T. (2011) – Established bifurcated standard of review, guiding the Court’s analytical framework.
In re Desarae M. & State ex rel. DHHR v. Cheryl M. – Articulated the purpose of a family case plan as an “organized, realistic method” for problem solving; H.L. extends the line by deeming substantial compliance sufficient.
In re Emily G. (2009) – Provided the threshold for vacating dispositional orders when procedure is “substantially disregarded.” Here used to refuse vacatur.
In re H.D. (2024) and In re T.G. (2020) – Memorandum decisions where the Court tolerated missing or defective case plans so long as the parent understood expectations; cited as parallel authority.
WVDHHR ex rel. Wright v. Doris S. (1996) – Cornerstone precedent allowing negative inference from silence; reaffirmed.
State v. C.N.S. (1984) – Emphasized clear-and-convincing burden; invoked to show DHS still had to prove substantive grounds even with the inference.
In re K.L. (2022) – Recognized failure to participate in an improvement period as a statutory basis for termination; supplied modern support.
In re B.H. (2023) – Distinguished; there, parents were penalized for tasks they could not legally perform. By contrast, Mother in H.L. controlled her visitation attendance and behavior.

Legal Reasoning

1. Harmless-Error Approach to Family Case Plans.
Rule 28(a) requires specific services, but the Court treated the rule as directory, not jurisdictional. If (i) the parent understands the deficiencies to be corrected, (ii) services are in fact offered, and (iii) the parent cannot demonstrate prejudice, an imperfect plan will not bar termination. The Court analogized to harmless-error doctrine generally and cited the remedial purpose of the proceedings.

2. Negative Inference from Silence.
Relying on Doris S., the Court held that because the system is remedial—not penal—the constitutional privilege against self-incrimination is not violated when a court merely considers silence as part of the evidentiary matrix. Importantly, the agency still must shoulder the clear-and-convincing burden. The circuit court’s sparse statement (“drew a negative inference”) sufficed; no extended findings were needed.

3. Finding of No Reasonable Likelihood of Correction.
Evidence included missed visits, hostility toward supervisors, dilute/abnormal drug screens (counted as positives per policy), refusal to release mental-health records, and inconsistent communication. West Virginia precedent recognizes that non-cooperation alone can satisfy W. Va. Code § 49-4-604(c). Once that threshold is crossed, termination of parental rights is mandatory if it best serves the child’s welfare.

Potential Impact on Future Litigation

Family Case Plan Litigation: Parents challenging termination on purely procedural, plan-drafting grounds will now face an uphill battle unless they can demonstrate concrete prejudice—expect more focus on substantial compliance and the parent’s actual knowledge.
Silence as Evidence: Trial courts are explicitly encouraged to articulate adverse inferences but are reminded to ensure the agency still meets its burden. Counsel will have to decide strategically whether testifying does more harm than good.
Visitation Non-Participation: H.L. highlights that voluntary refusal to utilize offered services—especially visitation—will be weighed heavily against parents, even where emotional bonds exist.
Harmless-Error Trend: The decision continues a pragmatic trend in child-welfare jurisprudence: procedural imperfections alone seldom suffice for reversal unless the parent can tie them to substantive injustice.

Complex Concepts Simplified

Family Case Plan: A written roadmap drafted by DHS and the MDT that spells out (i) problems to be remedied, (ii) services offered, and (iii) behavioral benchmarks. It functions like a contract guiding reunification efforts.
Improvement Period: A time-limited probationary stage (post-adjudication or post-disposition) during which the parent must engage in services and demonstrate change. Success can lead to reunification; failure often leads to termination.
Negative Inference from Silence: In civil (not criminal) proceedings, a decision-maker may, under certain circumstances, treat a party’s refusal to testify as evidence that the unanswered allegations are true. It is not automatic—courts still require independent proof.
“No Reasonable Likelihood” Standard: A statutory threshold (W. Va. Code § 49-4-604) requiring courts to terminate parental rights if, given present conditions and the parent’s performance, there is no realistic prospect of correcting the problems in the near future.

Conclusion

In re H.L. reinforces the West Virginia Supreme Court’s pragmatic approach in child-welfare cases: outcome over form. Whereas family-case-plan defects once offered a potential procedural lifeline, the Court now treats such errors as harmless absent prejudice, emphasizing the parent’s real-world understanding and conduct. At the same time, the Court reaffirms that civil proceedings permit negative inferences from silence, provided the agency meets the clear-and-convincing evidentiary threshold.

Practitioners should view H.L. as both a cautionary tale and a roadmap: Participation, transparency, and civility throughout the improvement period remain essential to preserving parental rights, while technical attacks on case-plan specificity will likely fail unless entwined with actual unfairness. Ultimately, the decision strengthens judicial discretion to prioritize child safety and welfare when parental engagement falls short.

Substantial Compliance Over Formal Specificity: West Virginia Supreme Court Clarifies Family-Case-Plan Requirements and Permissible Negative Inference – Comment on In re H.L. (2025)