“Denial, Continued Association, and the Futility Test” – Supreme Court of West Virginia Clarifies When Improvement Periods May Be Refused in Abuse-and-Neglect Cases

I. Introduction

In In re E.H., N.H., and I.H., No. 24-434 (W. Va. June 26 2025), the Supreme Court of Appeals of West Virginia affirmed the Logan County Circuit Court’s termination of adoptive mother M.H.’s parental rights to her three youngest children. The case arose from allegations of chronic physical, emotional, and sexual abuse within the household, compounded by the mother’s decision to keep the children in the care of her ex-husband W.H., an alleged drug user and accused sexual abuser.

The two pivotal issues on appeal were:

• whether the circuit court erred in adjudicating M.H. an abusing and neglecting parent; and
• whether the court erred in denying her a post-adjudicatory improvement period before terminating her parental rights.

The Supreme Court’s memorandum decision not only applied existing doctrine but also sharpened the rule that an improvement period is properly denied when (1) the parent continues to associate with a proven threat to the child and (2) persists in denying or minimising wrongdoing, rendering any remedial plan “futile.”

II. Summary of the Judgment

Reviewing the circuit court’s factual findings for clear error and its legal conclusions de novo, the Supreme Court held:

• Clear and convincing evidence supported the adjudication of abuse and neglect. Recordings, CAC interviews, physical evidence, and the mother’s admissions outweighed her character witnesses.
• The mother failed to meet the statutory burden for an improvement period because she never acknowledged her conduct, refused to disassociate from W.H., and did not comply with recommended anger-management and substance-abuse treatment. Therefore, the circuit court did not abuse its discretion in proceeding directly to disposition.
• Given the mother’s unwillingness or inability to correct conditions of abuse in the near future, termination of parental rights best served the children’s interests, paving the way for adoption in their current placement.

III. Analysis

A. Precedents Cited and Their Influence

1. In re Cecil T., 228 W. Va. 89 (2011) – Sets the standard of review: clear-error for facts, de novo for law. Guided the appellate court’s limited role.
2. In re F.S., 233 W. Va. 538 (2014) & In re Christina L., 194 W. Va. 446 (1995) – Confirm no special evidentiary form is required; CAC interviews and recordings are permissible to meet the clear-and-convincing threshold.
3. In re D.S., 2025 WL 892866 (2025) – Reiterates that appellate courts do not re-weigh evidence or second-guess credibility determinations. Used to reject M.H.’s argument that her contrary witnesses were ignored.
4. In re Charity H., 215 W. Va. 208 (2004) & In re Timber M., 231 W. Va. 44 (2013) – Introduce the “futility test.” An improvement period is inappropriate where a parent denies the underlying problems because treatment cannot succeed when the problem is unacknowledged.
5. In re Tonjia M., 212 W. Va. 443 (2002) – Confirms circuit courts have discretion to refuse an improvement period when unlikely to result in actual improvement.

By combining these strands, the Court reinforced that acknowledgement and behavioural change are prerequisites to any court-sanctioned reunification plan.

B. Court’s Legal Reasoning

1. Evidentiary Weight. The Court approved the use of CAC recordings, physical-injury observations, and audio evidence over lay witness testimony with limited exposure to the children. Reliability, firsthand detail, and corroboration trumped quantity of witnesses.
2. Statutory Requirements. West Virginia Code § 49-4-601(i) mandates proof of abuse “existing at the time of the petition.” The Court found ample contemporaneous evidence.
3. Denial & Continued Association. M.H. kept W.H. in a caretaking role and labelled the children liars. Under § 49-4-610 and Timber M., denial makes the problem “untreatable,” defeating the statutory requirement that a parent show, by clear and convincing evidence, likelihood of full participation in an improvement period.
4. Best Interests & Reasonable Likelihood. The circuit court’s poor prognosis, unaddressed anger issues, and ongoing relationship with W.H. supported findings that the abusive conditions could not be corrected “in the near future.” Termination was therefore proper under § 49-4-604(c)(6).

C. Potential Impact

Although the decision is unpublished, it crystallises practical guidance for lower courts, guardians, and practitioners:

• Operational Test for “Futility.” The Court’s concurrence of denial and association with the alleged abuser as a dual litmus test will likely be cited to refuse improvement periods in similar circumstances.
• Increased Evidentiary Emphasis on CAC Material. Reinforces that well-documented children’s statements, even if hearsay-like, carry potent weight when properly recorded and corroborated.
• Professional-Services Compliance. Parents must follow not only DSS-issued case plans but also third-party professional recommendations (anger-management, substance-abuse counselling). Partial compliance is insufficient.
• Guardrails for Appeals. The decision reminds appellants to comply with Rule 10(c)(7) by pinpointing record cites for every alleged error—failure may doom collateral issues such as post-termination visitation.

IV. Complex Concepts Simplified

• Clear and Convincing Evidence: A mid-level burden of proof requiring that allegations be highly probable, more than “preponderance” but less than “beyond a reasonable doubt.” In child protection, it balances parental rights with child safety.
• Adjudicatory Hearing: The stage where the court decides whether abuse or neglect occurred. Comparable to a trial on liability.
• Improvement Period: A statutorily defined, time-limited opportunity for parents to rectify abusive conditions under court supervision, akin to a rehabilitation probation.
• “No Reasonable Likelihood” Finding: Statutory conclusion that the parent cannot, on their own or with help, correct abusive conditions promptly enough for the child’s welfare.
• Child Advocacy Center (CAC) Interview: A structured, forensic interview of a child by trained professionals, recorded to preserve testimony and minimise trauma.

V. Conclusion

In re E.H., N.H., and I.H. cements an important practical rule in West Virginia child-abuse jurisprudence: When a parent persists in denial and continues to expose children to a known threat, an improvement period is not merely discretionary—it is futile and can be refused outright. The Supreme Court’s decision underscores that genuine accountability and behavioural change are the non-negotiable price of reunification. Future litigants would be wise to view acknowledgement of wrongdoing and strict compliance with professional recommendations as the sine qua non of preserving or restoring parental rights.