Waiver of Unpreserved Challenges to Improvement-Period Restrictions; Credibility Deference Supports Termination Despite Partial Compliance

1. Introduction

In re: A.L.-1, J.L., K.L., and W.L. is an appeal by the mother (“Petitioner Mother A.L.-2”) from a Webster County circuit court order terminating her parental rights. The case originated with a DHS abuse and neglect petition alleging the family was homeless and, later, that the children lacked a fit, apt, and suitable home environment. Although the mother received a post-adjudicatory improvement period and made progress (employment, housing, services), the litigation pivoted to whether she violated a specific improvement-period condition: that she discontinue her relationship with a boyfriend, G.L., whose criminal history caused DHS and the court to deem him unsuitable to be around the children.

The core appellate issues were (1) whether the mother could challenge the propriety of the “no relationship with G.L.” restriction on appeal, and (2) whether the evidence supported the circuit court’s finding that she violated that condition—thereby justifying termination under the “best interests” standard and the statutory “no reasonable likelihood” framework.

2. Summary of the Opinion

The Supreme Court of Appeals of West Virginia affirmed in a memorandum decision. It held that the mother’s attack on the restriction barring association with G.L. was waived because she did not object below, and in fact raised the “remoteness” argument for the first time at oral argument. On the merits of disposition, the Court deferred to the circuit court’s credibility determinations—crediting testimony and circumstantial evidence that the mother continued contact with G.L. after being ordered to stop. The Court reiterated that compliance with an improvement period is only one factor; the controlling standard remains the best interests of the child. Finally, now that termination was affirmed, the Court directed the circuit court to reevaluate whether any continued visitation pending appeal remains appropriate under In re J.G..

3. Analysis

A. Precedents Cited

  • In re Tiffany Marie S. (Syl. Pt. 1, in part): supplies the “clearly erroneous” review of factual findings and the principle that appellate courts do not reweigh evidence; a finding is affirmed if plausible in light of the whole record. This framed the Court’s refusal to second-guess the circuit court’s credibility calls and factual finding that the mother continued the prohibited relationship.
  • In re S.W. (Syl. Pt. 1): confirms that the ultimate disposition is reviewed for abuse of discretion, supporting deference to the circuit court’s termination decision once the factual predicate was plausibly found.
  • Hanlon v. Logan Cnty. Bd. of Educ.: applied to enforce preservation—parties must alert the tribunal to defects when they occur to preserve appellate review.
  • State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell (quoting Whitlow v. Bd. of Educ. of Kanawha Cnty.): explains why unraised issues are not entertained on appeal (undeveloped facts, fairness, need for trial-court refinement). The Court used this rationale to reject the mother’s late-asserted challenge to the restriction involving G.L.
  • Argus Energy, LLC v. Marenko: reinforced that issues first raised at oral argument are generally waived—directly applicable because the mother advanced the “criminal history is remote” point at oral argument rather than in the circuit court (and, as the opinion notes, not in her brief).
  • In re D.H. (quoting In re Emily B.): emphasized that credibility determinations belong to the circuit court as trier of fact.
  • Michael D.C. v. Wanda L.C.: reiterated that an appellate court cannot assess witness credibility from a cold record and will not “second guess” such determinations—key to rejecting the mother’s invitation to prefer her testimony over the father’s.
  • In re B.H. (Syl. Pt. 4): central substantive rule—improvement-period compliance is only one factor; the controlling standard is the best interests of the child. This undercut the mother’s thesis that service compliance required reunification or extension.
  • In Int. of Carlita B. (Syl. Pt. 6, in part): confirms the court’s discretion at the conclusion of an improvement period to determine whether conditions have been satisfied; later, In Int. of Carlita B. also supplies the proposition (quoting In re R.J.M., Syl. Pt. 1, in part) that courts need not exhaust speculative possibilities of improvement where a child’s welfare is seriously threatened.
  • In re F.N.: cited to support the circuit court’s discretion in assessing overall success of an improvement period and determining disposition accordingly.
  • In re J.G.: applied to require a post-termination reassessment of visitation/continued contact—permitting it only if non-detrimental, in the child’s best interests, and not interfering with permanent placement.
  • In re A.E. (concurring opinion): invoked for the principle that abuse-and-neglect discretion is constrained by “constitutional and statutory bounds,” and courts must be able to explain the factual and legal basis for obligations imposed.
  • State ex rel. C.H. v. Faircloth (citing J.G., II): used in concurrence to warn that discretion is not “blanket immunity” for arbitrary case management.
  • In re Timber M. (Syl. Pt. 3, in part): cited in concurrence for the “best interests of the child” as the “polar star” guiding discretion—used to critique potentially overbroad restrictions untethered to child welfare.

B. Legal Reasoning

(1) Preservation/Waiver governs challenges to improvement-period restrictions.
The Court treated the mother’s complaint about the restriction (no relationship/contact with G.L.) as unpreserved. The opinion’s logic is practical: had the mother objected, the circuit court would have been required to make a record explaining the factual basis for the restriction. Without a timely objection, the necessary factual development and trial-level adjudication never occurred, so appellate review would be unfair and ill-informed. The Court therefore enforced waiver under Hanlon v. Logan Cnty. Bd. of Educ. and State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, and also noted waiver for matters first raised at oral argument under Argus Energy, LLC v. Marenko.

(2) Credibility determinations are effectively dispositive when the violation turns on testimony and circumstantial evidence.
The termination decision depended on whether the mother continued seeing G.L. outside work—despite a direct court order. The circuit court found the mother “evasive,” credited the father’s testimony that G.L. was at the home the night before disposition, and treated continued use of G.L.’s vehicle and the Facebook evidence as indicating ongoing relationship/contact. On appeal, the mother attempted to re-litigate credibility (attacking the father as biased; asserting her own testimony was believable). The Supreme Court refused, relying on In re D.H., In re Emily B., and Michael D.C. v. Wanda L.C.: trial courts see and hear witnesses; appellate courts do not reweigh credibility from transcripts. Under In re Tiffany Marie S., the factual account need only be plausible in the record to survive review.

(3) Best interests remain controlling; improvement-period compliance is not outcome-determinative.
Even though the mother had shown progress in certain services and housing, the Court reaffirmed In re B.H.: compliance is only one factor, not a guarantee of reunification. The circuit court warned the mother of this at the October hearing, explicitly tying disposition to whether she ended the relationship with G.L. By finding she violated that condition, the circuit court concluded she failed to correct the neglect condition concerning a “fit, apt, and suitable home.”

(4) Statutory termination framework and least restrictive alternative.
Once the violation was found, the Court upheld the findings that there was “no reasonable likelihood” the conditions could be substantially corrected in the near future and that no less restrictive alternative would protect the children, citing W. Va. Code § 49-4-604(c)(6). It further upheld denial of extension of the improvement period under W. Va. Code § 49-4-610(6) and the discretionary improvement-period assessment principles discussed in In re F.N. and In Int. of Carlita B..

(5) Post-termination visitation requires renewed scrutiny.
Because the circuit court had allowed limited visits pending appeal due to the bond, the Supreme Court—after affirming termination—directed the circuit court to re-evaluate ongoing contact under In re J.G., ensuring visitation would not be detrimental, would be in the children’s best interests, and would not interfere with permanent placement.

C. Impact

This decision’s practical significance lies in three interlocking messages for abuse-and-neglect litigation:

  • Immediate objection is essential when a court imposes improvement-period restrictions (particularly restrictions implicating association/relationships). Absent a timely challenge, appellate review is likely barred as waived, and the record may be too undeveloped to test whether the restriction was appropriately tied to child welfare.
  • Credibility is often destiny in contested compliance disputes. Where a termination turns on whether a parent violated conditions, appellate courts will rarely disturb a circuit court’s witness assessments.
  • Service completion does not compel reunification. The best-interests standard can support termination where a court finds a parent’s choices (including continued association with persons deemed unsuitable) keep the home unfit or unstable.

The concurrence underscores an additional caution: restrictions must be tethered to the child’s welfare and be defensible within constitutional/statutory bounds (In re A.E.), but the ability to litigate that question depends on preserving it and building an evidentiary record.

4. Complex Concepts Simplified

  • Improvement period: a court-ordered window during which a parent must complete specific tasks (e.g., drug screens, parenting classes, housing) to remedy conditions leading to abuse/neglect jurisdiction. Completion helps but does not guarantee reunification.
  • Dispositional hearing/order: the phase where the court decides the long-term outcome—return home, guardianship, termination, etc.
  • Termination of parental rights: the most severe disposition, permanently ending the legal parent-child relationship.
  • Clearly erroneous vs. abuse of discretion: factual findings stand unless a serious mistake is evident; the ultimate disposition is upheld unless the court’s decision was outside reasonable bounds.
  • Waiver/preservation: if a party does not timely object or raise an issue in the trial court, appellate courts generally will not review it.
  • Credibility determinations: the trial judge decides whom to believe; appellate courts generally cannot re-decide credibility from transcripts.
  • “No reasonable likelihood” (W. Va. Code § 49-4-604(c)(6)): a statutory conclusion that the parent is unlikely to fix the problems soon enough to protect the child—supporting termination when necessary for welfare.

5. Conclusion

In re: A.L.-1, J.L., K.L., and W.L. reinforces that (1) challenges to improvement-period restrictions must be preserved in the circuit court, not debuted at oral argument on appeal; (2) appellate review is highly deferential to circuit-court credibility determinations regarding compliance; and (3) even substantial improvement-period progress does not override the controlling “best interests of the child” standard. The decision also signals that once termination is affirmed, any continued visitation must be reassessed under In re J.G. to ensure it serves permanency and child welfare.