Termination Without Less Restrictive Alternatives and a Rigorous “Substantial Change” Threshold for Post‑Dispositional Improvement Periods: Commentary on In re A.F. and H.J.

Introduction

This commentary analyzes the Supreme Court of Appeals of West Virginia’s memorandum decision in In re A.F. and H.J., No. 24-574 (Sept. 30, 2025), affirming the Hardy County Circuit Court’s order terminating Petitioner Father X.F.’s parental rights to A.F. and terminating the custodial rights “such as he has” to H.J. The case centers on whether the circuit court erred by imposing the most restrictive disposition—termination of parental rights—rather than a less restrictive alternative under West Virginia Code § 49-4-604(c)(5), and whether the father was entitled to a post-dispositional improvement period based on asserted changed circumstances during incarceration.

The decision reaffirms two key principles in West Virginia abuse and neglect jurisprudence:

Termination of parental rights may proceed without employing less restrictive alternatives when there is no reasonable likelihood that conditions of abuse or neglect can be substantially corrected in the near future.
A post-dispositional improvement period requires a genuine “substantial change in circumstances” and a concrete likelihood of substantial compliance; mere participation in programs, especially with ongoing noncompliance, is insufficient.

Parties included Petitioner Father X.F., the West Virginia Department of Human Services (DHS), and the children’s guardian ad litem. The mother’s and the unknown biological father’s rights were also terminated below, and the permanency plan is adoption in the current placement.

Summary of the Opinion

The Supreme Court affirmed the termination order, concluding:

Clear and convincing evidence supported the circuit court’s findings that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future, given the father’s continued drug use, failure to complete services, discharge from rehabilitative programs for noncompliance (including from the Anthony Center following rule infractions and a fight), and his incarceration without a concrete release date.
Under W. Va. Code § 49-4-604(d)(3) and controlling precedent, the court was not required to attempt less restrictive alternatives before terminating parental rights when the parent failed to respond to the family case plan and other rehabilitative efforts.
The father did not meet the statutory threshold for a post-dispositional improvement period under W. Va. Code § 49-4-610(3)(D), because his continued substance use, violent behavior, and dismissals from programs showed he was unlikely to substantially comply despite claimed program participation while incarcerated.

Accordingly, termination under W. Va. Code § 49-4-604(c)(6) was affirmed, and the petition for a less restrictive disposition under § 49-4-604(c)(5) was rejected.

Factual and Procedural Background

DHS initiated proceedings in June 2023 alleging exposure of the children to domestic violence and drugs, threats by the father to burn down the home or shoot everyone (prompting law enforcement intervention), and failure to provide suitable housing and appropriate hygiene. A temporary protection plan failed when the father did not comply.

At the July 2023 adjudicatory hearing, the father stipulated to substance abuse impairing his parenting, domestic violence in the children’s presence, and failures regarding housing and hygiene. He was adjudicated an abusing and neglectful parent. A family case plan followed, requiring parenting and adult life skills classes, supervised visitation, anger management, suitable housing, employment, abstention from illegal substances, and timely reporting of law enforcement contacts.

In September 2023, the court granted a post-adjudicatory improvement period. By November, DHS reported a positive drug test and brief incarceration, though the father was then testing negative post-release. In February 2024, he violated probation in a related criminal matter by testing positive for methamphetamine and alcohol, resulting in incarceration at a rehabilitative facility. In April 2024, the improvement period was extended for partial compliance and program participation while incarcerated. In May 2024, the father sought a post-dispositional improvement period citing participation in numerous services while incarcerated.

At the August 2024 dispositional hearing, evidence showed the father had “numerous rule infractions” in custody and was discharged from the Anthony Center, was dismissed from the day report program upon incarceration and had been testing positive for illicit drugs prior to dismissal, and failed to complete anger management or adult life skills classes. The circuit court found no basis to continue or grant a new improvement period, and terminated his parental rights (and his custodial rights to H.J.). The Supreme Court affirmed.

Detailed Analysis

Precedents and Statutes Applied

Standard of Review – In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): The Court reviewed factual findings for clear error and legal conclusions de novo. This framing is critical because the father challenged the sufficiency of the record for termination and argued for a less restrictive disposition. The clear-error standard insulated the circuit court’s fact findings (noncompliance, ongoing drug use, incarceration without release date), while de novo review preserved the correct legal application of the termination standards and improvement period statute.
Termination without less restrictive alternatives – In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), and In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980): Syllabus points in Kristin Y. (quoting R.J.M.) reaffirm that a court may terminate parental rights without using less restrictive alternatives when there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future. The Court relied on this principle to reject the father’s proposed disposition under W. Va. Code § 49-4-604(c)(5).
Child welfare statutes – W. Va. Code § 49-4-604 and § 49-4-610:
- Section 49-4-604(c)(6) authorizes termination of parental rights upon findings that termination is necessary for the child’s welfare and there is no reasonable likelihood of correction of the conditions in the near future.
- Section 49-4-604(d)(3) defines “no reasonable likelihood” to include when a parent fails to respond to or follow through with a reasonable family case plan or rehabilitative efforts designed to reduce or prevent the abuse or neglect.
- Section 49-4-604(c)(5) is a less restrictive dispositional alternative the father sought instead of termination.
- Section 49-4-610(3)(D) governs post-dispositional improvement periods after a parent has already received an improvement period, requiring a “substantial change in circumstances” and a showing that the parent is likely to substantially comply.

Legal Reasoning

The Court’s analysis proceeded in two related steps: whether termination without less restrictive alternatives was proper, and whether a further improvement period was warranted.

1) Termination without less restrictive alternatives

The father argued for a less restrictive disposition under § 49-4-604(c)(5). The Court applied Kristin Y. and R.J.M. to hold that when the record demonstrates no reasonable likelihood that conditions can be substantially corrected, termination may be imposed without first attempting intermediate dispositions. The Court then assessed the statutory “no reasonable likelihood” factors under § 49-4-604(d)(3) and found clear and convincing evidence of noncompliance:

Repeated substance use during the proceedings, including positive tests and a probation violation for methamphetamine and alcohol.
Failure to complete case plan services, including anger management and adult life skills.
Dismissals for noncompliance from both the day report program and the Anthony Center (with “numerous rule infractions” and a fight).
Present incarceration at the time of disposition with no concrete release date, rendering him unable to provide a safe and suitable home.

These facts collectively satisfied the statutory standard for termination under § 49-4-604(c)(6) and (d)(3). The Court emphasized the children’s best interests and need for permanency, underscoring that continuation in the father’s care would be contrary to their welfare.

2) Denial of a post-dispositional improvement period

Having received a post-adjudicatory improvement period and an extension, the father sought a post-dispositional improvement period based on program participation in custody. The Court held he failed to demonstrate a “substantial change in circumstances” and a likelihood of substantial compliance as required by § 49-4-610(3)(D). The record instead showed:

Ongoing drug use even after services began.
Violent conduct and rule infractions leading to discharge from rehabilitative programming.
Failure to complete core services tied to the adjudicated conditions (anger management, life skills).

The Court invoked the well-established principle that courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where the child’s welfare would be seriously threatened (Kristin Y. and R.J.M.). In other words, program enrollment alone—especially with contemporaneous noncompliance—does not equate to the kind of durable, demonstrable change contemplated by § 49-4-610(3)(D).

Treatment of the Non-Biological Custodian

The opinion notes that the petitioner is not H.J.’s biological father but was a custodian as all lived together. The circuit court terminated his parental rights to A.F. and “such rights as he has” to H.J., which the Supreme Court understood to mean termination of his custodial rights under § 49-4-604(c)(6). This recognizes that, for non-biological caretakers, courts may terminate custodial rights upon the same statutory findings supporting termination where the individual stands in a caregiving role implicated by abuse or neglect.

Key Impacts and Practical Significance

Reaffirmed threshold for termination: When a parent does not follow through with a reasonable case plan and continues the core conduct (substance abuse, violence) that precipitated removal, courts may terminate without testing intermediate permanency options.
High bar for post-dispositional improvement periods: A parent who has already received an improvement period and an extension must present credible, durable change—not only program participation, but completion and sustained behavioral reform—before obtaining another opportunity after disposition.
Incarceration and indeterminate release: Incarceration, particularly with no concrete release date and alongside noncompliance, powerfully supports findings that a parent is “unable or unwilling” to provide care and that there is no reasonable likelihood of correcting conditions in the near term.
Best interests and permanency: The decision underscores the primacy of children’s need for a stable and permanent home, aligning with the statutory directive to avoid prolonged uncertainty in hopes of speculative parental improvement.
Non-biological custodians: Caretakers who are not biological parents can have their custodial rights terminated where statutory standards are met, ensuring the same protective framework applies to all caregivers responsible for the child’s safety and welfare.

Complex Concepts Simplified

Improvement Periods: These are court-authorized intervals during which a parent must complete services designed to remedy abuse/neglect conditions. A post-adjudicatory improvement period follows adjudication. A post-dispositional improvement period may be sought even later but requires a “substantial change in circumstances” after a prior improvement period and a showing that the parent is now likely to substantially comply (W. Va. Code § 49-4-610(3)(D)).
“No Reasonable Likelihood” of Correction: Under § 49-4-604(d)(3), this exists when a parent fails to respond to or follow through with the case plan and rehabilitative efforts. It is a forward-looking assessment focused on whether the conditions can be corrected in the near future.
Less Restrictive Alternatives: Dispositions less severe than termination (e.g., custody to a suitable person or legal guardianship) are codified in § 49-4-604(c)(5). Courts need not use these if statutory grounds for termination under § 49-4-604(c)(6) are met and there is no reasonable likelihood of correction.
Clear and Convincing Evidence: A high evidentiary standard requiring that the evidence produce a firm belief or conviction regarding the truth of the allegations. The Supreme Court found this standard satisfied for the circuit court’s termination findings.
Best Interests of the Child: A guiding principle in abuse and neglect law that prioritizes the child’s safety, stability, and permanency over speculative prospects of parental improvement.
Anthony Center and Day Report Programs: The opinion references a correctional facility offering rehabilitative services (i.e., Anthony Center) and a community-based day report program. Dismissals for noncompliance, rule infractions, or continued drug positivity are powerful indicators against likely future compliance.

How the Precedents Shaped the Outcome

In re Kristin Y. and In re R.J.M. provided the doctrinal backbone for two pivotal determinations: (1) less restrictive alternatives are not prerequisites to termination where parents are unlikely to correct conditions promptly, and (2) courts are not required to exhaust speculative possibilities of improvement when children’s welfare is jeopardized. Together with § 49-4-604(d)(3), those cases set a clear analytic route to termination once noncompliance with the case plan is established.

In re Cecil T. structured the appellate review, ensuring that the circuit court’s factual findings stood absent clear error—critical given the evidentiary record of repeated violations, program failures, and incarceration without a release date.

Practice Pointers

For parents and counsel: Mere enrollment in services—especially after prolonged noncompliance—will not satisfy § 49-4-610(3)(D). Documented completion, sustained sobriety, anger management participation, and concrete post-release plans are essential.
For DHS and GALs: Build a detailed record of compliance and noncompliance, including dates, test results, program reports, and the absence of a release date, to support findings under § 49-4-604(d)(3).
For courts: When adjudicated conditions persist during improvement periods, and when the parent remains unable to provide a safe home in the near term, Kristin Y./R.J.M. authorize bypassing less restrictive dispositions in favor of termination to meet children’s permanency needs.

Conclusion

In re A.F. and H.J. reinforces core tenets of West Virginia abuse and neglect law. The Supreme Court affirmed termination where the father continued substance use, failed critical services, was discharged from rehabilitative programs for noncompliance, and remained incarcerated without a release date—facts that collectively established no reasonable likelihood of correcting the conditions in the near future. The Court likewise held that a post-dispositional improvement period was unwarranted absent a demonstrable, substantial change in circumstances and a credible prospect of substantial compliance.

The decision underscores that courts are not obliged to try less restrictive alternatives when the statutory termination criteria are met, and that children’s best interests and permanency imperatives remain paramount. While issued as a memorandum decision without new syllabus points, the case provides a clear, practical application of Kristin Y., R.J.M., § 49-4-604, and § 49-4-610, offering guidance to practitioners and courts navigating the intersection of parental rehabilitation efforts, incarceration realities, and the pressing need for stable permanency for children.