Date: Nov 30, 2025
I. Introduction
On November 25, 2025, the Supreme Court of Appeals of West Virginia issued a memorandum decision in
In re B.W. and N.W., No. 25-3 (Braxton County Nos.
CC-04-2024-JA-17 & -18), affirming the termination of a legal
guardian’s
custodial and guardianship rights to two minor children. The opinion,
though designated as a memorandum decision under Rule 21 of the West
Virginia Rules of Appellate Procedure, clarifies the application of
several important principles in West Virginia child abuse and neglect
jurisprudence:
- The demanding standard a parent, guardian, or custodian must meet
to obtain a post-adjudicatory improvement period under W. Va. Code §
49-4-610(2)(B).
- The central importance of genuinely acknowledging neglect or abuse as a precondition to meaningful rehabilitation.
- The treatment of legal guardians, not just biological parents, as
subject to termination when they knowingly defy court-ordered visitation
restrictions and fail to protect children from previously terminated
parents.
- The consequences of failing to properly preserve and document
issues in the record for appellate review, particularly with respect to
arguing joinder of necessary parties under W. Va. Code § 49-4-601(b).
The petitioner, S.D., was the children’s legal guardian following the
prior termination of their biological parents’ custodial rights in 2019.
The Department of Human Services (“DHS”) filed a new abuse and neglect
petition in 2024 alleging that S.D. failed to protect the children by
facilitating unauthorized, unsupervised contact with their biological
parents and by educationally neglecting one of the children, B.W. After
adjudicating her as a neglectful custodian, the circuit court denied her
request for an improvement period and terminated her guardianship and
custodial rights. S.D. appealed, challenging chiefly the denial of a
post-adjudicatory improvement period.
This commentary examines the factual background, the Supreme Court’s
holdings, the precedents applied, and the broader significance of the
decision for child protection law and guardianship cases in West
Virginia.
II. Factual and Procedural Background
A. The 2019 Abuse and Neglect Case and Guardianship
In 2019, the children’s biological parents were the subject of an abuse
and neglect proceeding that culminated in the termination of their
custodial rights. As a result of that proceeding:
- The children, B.W. and N.W., were placed in a legal guardianship with the petitioner, S.D., and her then-spouse.
- The circuit court’s dispositional order specifically required that all visitation between the parents and the children be supervised by the petitioner.
Separately, the parents were convicted of felony child neglect, served
prison sentences, and completed parole. The felony convictions and the
prior termination of custodial rights formed the backdrop against which
the circuit court imposed strict supervised visitation conditions in
2019.
B. Efforts to Reinstate Parental Custodial Rights in 2022
In 2022, S.D. attempted to have the parents’ custodial rights reinstated:
- She wrote a letter to the circuit court requesting reinstatement of the parents’ custodial rights.
- The circuit court replied that she had no standing to make such a request and declined to address it.
- The parents themselves later filed a motion seeking reinstatement of their custodial rights.
- In September 2022, the circuit court denied their motion,
expressly noting the parents’ felony child neglect convictions,
completed sentences, and parole.
The 2022 order thus reaffirmed that the parents’ custodial rights
remained terminated and that the supervised visitation regime from the
2019 case remained in force.
C. The 2024 DHS Petition and CPS Investigation
On April 23, 2024, DHS filed a new abuse and neglect petition against S.D. The petition alleged that she:
- Failed to protect the children by allowing them to live with their
biological parents, whose custodial rights had been previously
terminated.
- Failed to provide a fit and suitable home.
- Educationally neglected B.W.
A critical incident occurred on April 20, 2024, when a Child Protective
Services (“CPS”) worker visited S.D.’s home to investigate allegations
of unsupervised contact with the biological parents:
- S.D. told CPS she allowed the children to see their parents “as
much as they wanted” in order to “transition” them back to the parents.
- She admitted removing then-thirteen-year-old B.W. from school but claimed B.W. was medically excused.
- B.W. and then-eight-year-old N.W. each told the CPS worker that
they lived at their biological mother’s home and spent more time there
than at S.D.’s home.
- School personnel reported that B.W. had been absent from school
for approximately one month and no medical excuse had been provided.
These facts led DHS to allege both failure to protect the children from prohibited parental contact and educational neglect.
D. Adjudicatory Hearing and Neglect Finding
The circuit court held an adjudicatory hearing in June 2024. Key testimony included:
-
School Attendance Director: He testified that B.W.
had over twenty-five unexcused absences and a similar number of excused
absences, and was failing nearly every subject. Notably, the children’s
biological parents were listed as individuals authorized to sign the
children out of school.
-
Forensic Interviewer: The interviewer testified that both children disclosed in forensic interviews that they lived with their parents, unsupervised.
-
Petitioner S.D.: She admitted that she allowed the children to have unsupervised contact with their parents despite:
- Knowing that the 2019 dispositional order allowed only supervised visitation, and
- Knowing that the circuit court had denied the parents’ 2022 motion to reinstate custodial rights.
Based on this evidence, the circuit court found that S.D.:
- Failed to protect the children from unauthorized, unsupervised
contact with their biological parents in contravention of the prior
dispositional order.
- Neglected B.W.’s educational needs by taking her out of school without putting an alternative educational program in place.
The court adjudicated S.D. as having neglected the children.
E. Psychological Evaluation
In August 2024, S.D. completed a psychological evaluation. Key findings included:
- She acknowledged knowing that the parents were not permitted to be around the children as part of their criminal case.
- She denied knowing that contact was also prohibited due to the prior abuse and neglect proceeding.
- She “continually countered the bases for the [parents’] CPS and
criminal cases” and “persistently spoke as though the rules either did
not apply to her or that what she believes should overrule the judgments
of the [c]ourt.”
- The evaluator concluded that her failure to accept responsibility,
her sense of entitlement, and her belief that her view of the facts
superseded the court’s judgment made her prognosis for improved
parenting poor.
The evaluator specifically opined that there was no reason to believe S.D. would follow court directives going forward.
F. Dispositional Hearing and Termination of Guardianship
At the October 2024 dispositional hearing:
- The psychological evaluator reiterated S.D.’s defensive response
style and her insistence that she had been justified in allowing
unsupervised contact with the parents.
- A CPS worker testified that DHS recommended termination because
S.D. failed to acknowledge any wrongdoing, rendering services and an
improvement period futile.
- S.D. herself testified that she would take responsibility and
participate in any services offered. However, she simultaneously
continued to assert that she was unaware that the parents were not
permitted unsupervised contact with the children.
The circuit court, on the record, found that:
- Despite her “feeble attempt” at the dispositional hearing to admit
wrongdoing in order to obtain an improvement period, S.D. had not shown
she would comply with court orders in the future.
- She failed to accept responsibility for her conduct.
- She permitted unauthorized, unsupervised contact with the parents
and failed to protect the children, causing them emotional distress.
- There was no reason to believe that she would comply with an improvement period or any court orders.
- There was no reasonable likelihood that she could substantially
correct the circumstances of abuse and neglect in the foreseeable
future.
- No less restrictive alternative to termination of her guardianship
and custodial rights was available, and termination was in the
children’s best interests.
Although the written order used language about terminating “parental”
rights, the Supreme Court clarified that S.D. was a legal guardian, not a
parent. On the record, the circuit court had expressly terminated “all
parental rights, or[] all custodial rights or any rights she may have by
virtue of being a custodian,” and the Supreme Court construed the order
as terminating her custodial and guardianship rights.
At that point, the status of the other adults was:
- The biological parents’ custodial rights had been previously terminated and remained terminated.
- S.D.’s ex-spouse had voluntarily relinquished his guardianship rights.
- The permanency plan was for guardianship in the children’s current placement (i.e., with a different guardian/custodian).
III. Summary of the Supreme Court’s Opinion
On appeal, S.D. principally argued that the circuit court erred in
denying her motion for a post-adjudicatory improvement period. She
claimed that she admitted her conduct was deficient and expressed a
willingness to participate in services designed to demonstrate her
ability to comply with court orders.
The Supreme Court:
- Applied the standard of review from In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), reviewing factual findings for clear error and legal conclusions de novo.
- Reiterated the statutory requirement under W. Va. Code §
49-4-610(2)(B) that a respondent must demonstrate, by clear and
convincing evidence, that they are likely to fully participate in a
post-adjudicatory improvement period.
- Invoked the longstanding principle from In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013), and In re Charity H.,
215 W. Va. 208, 599 S.E.2d 631 (2004), that failure to acknowledge the
existence of the abuse or neglect problem renders it untreatable and an
improvement period futile.
- Held that the record was “replete” with evidence that S.D. failed
to abide by court orders and refused to acknowledge her neglectful
conduct, including her characterization of her violation of the prior
dispositional order as “reasonable.”
- Concluded that the circuit court did not abuse its discretion in
determining that she was not likely to participate in an improvement
period, and therefore affirmed the denial of her motion for such an
improvement period.
- Cited In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354
(2002), to confirm that a circuit court may refuse an improvement period
when no improvement is likely.
S.D. also argued that the circuit court erred by denying her motion to
add the children’s parents as respondents on the theory that they
retained parental rights. The Supreme Court declined to review this
assignment of error because:
- S.D. failed to provide any citation to the appendix record showing
where she filed such a motion or where the circuit court denied it.
- Under Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 679 S.E.2d 650 (2009), Shaffer v. Acme Limestone Co.,
206 W. Va. 333, 524 S.E.2d 688 (1999), and Rule 10(c)(7) of the West
Virginia Rules of Appellate Procedure, issues not properly preserved and
not supported by record citations will not be considered on appeal.
- Even if the Court could consider the issue, S.D. did not show how
the alleged error prejudiced her or substantially frustrated the
purposes of the child abuse and neglect procedural rules, rendering any
error harmless under In re Stephen Tyler R., 213 W. Va. 725, 584 S.E.2d 581 (2003).
Accordingly, the Supreme Court affirmed the December 3, 2024 order terminating S.D.’s custodial and guardianship rights.
IV. Detailed Analysis
A. Precedents and Statutes Shaping the Decision
1. Standard of Review – In re Cecil T.
The Court began by reaffirming the familiar standard of review for abuse and neglect appeals:
“On appeal from a final order in an abuse and neglect proceeding, this
Court reviews the circuit court's findings of fact for clear error and
its conclusions of law de novo.”
— Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
This standard underpins the deferential approach taken to the circuit
court’s factual assessments—particularly regarding S.D.’s credibility,
her alleged acknowledgment of wrongdoing, and the weight given to the
psychological evaluation—while allowing the Supreme Court to
independently interpret and apply the governing statutes and prior case
law.
2. Improvement Periods – W. Va. Code § 49-4-610(2)(B)
W. Va. Code § 49-4-610(2)(B) governs post-adjudicatory improvement
periods. The Court quoted and applied the requirement that a respondent
must:
“demonstrate[], by clear and convincing evidence, that [she] is likely to fully participate in the improvement period.”
Several points emerge from the Court’s application of this statute:
- The burden lies with the respondent (here, the guardian) to
affirmatively demonstrate the likelihood of full participation; it is
not presumed.
- The standard of proof is “clear and convincing,” which is more
demanding than a mere preponderance, reflecting the seriousness of abuse
and neglect proceedings.
- The statute applies equally to “parents” and to “guardians” or “custodians” whose rights are at stake, as this case shows.
3. Acknowledgment Requirement – In re Timber M. and In re Charity H.
The Court’s core reasoning rests on the principle that meaningful
treatment cannot occur until the respondent admits there is a problem.
Citing In re Timber M., which in turn quoted In re Charity H., the Court reiterated:
“In order to remedy the abuse and/or neglect problem, the problem must
first be acknowledged. Failure to acknowledge the existence of the
problem . . . results in making the problem untreatable and in making an
improvement period an exercise in futility at the child[ren]'s
expense.”
This doctrine has been repeatedly applied to biological parents. In In re B.W. and N.W.,
the Court confirms its full applicability to legal guardians as well.
The principle becomes the pivot on which the denial of the improvement
period turns.
4. Judicial Discretion to Deny an Improvement Period – In re Tonjia M.
The Court further anchored its decision in In re Tonjia M.:
“The circuit court has the discretion to refuse to grant an improvement period when no improvement is likely.”
— In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).
This case underscores that improvement periods are not automatic
entitlements; they are discretionary tools designed to protect children
while offering respondents a structured opportunity to correct their
behavior—if there is a realistic prospect of improvement.
In In re B.W. and N.W., the circuit court, and ultimately the
Supreme Court, concluded that S.D.’s entrenched belief that she could
disregard court orders, coupled with her refusal to genuinely
acknowledge neglect, made any improvement period futile.
5. Necessary Parties and Record Preservation – W. Va. Code § 49-4-601(b), Rule 10(c)(7), and Related Cases
Although a secondary issue, the Court addressed S.D.’s argument that the
biological parents should have been added as respondents. W. Va. Code §
49-4-601(b) requires:
“Each petition shall name as a party each parent, guardian, custodian,
other person standing in loco parentis of or to the child.”
S.D. claimed the circuit court erred by not adding the parents. However:
- She failed to provide appendix citations showing that she actually filed such a motion or that the circuit court ruled on it.
- Under Noble and Shaffer, nonjurisdictional issues not raised below will generally not be addressed for the first time on appeal.
- Rule 10(c)(7) authorizes the Supreme Court to disregard alleged
errors unsupported by specific record citations, including where and how
the issues were presented below.
- Even assuming the issue were properly before the Court, S.D. did
not demonstrate that any failure to add the parents as parties caused
her prejudice or substantially frustrated the purpose of the abuse and
neglect procedural rules, making any error harmless under In re Stephen Tyler R..
This component of the decision sends a strong reminder to counsel:
appellate courts will not consider inadequately preserved or
undocumented claims, even in sensitive child welfare matters, absent a
showing of prejudice and substantial impact on the statutory scheme’s
purposes.
B. The Court’s Legal Reasoning
1. Assessing “Likelihood of Full Participation” in an Improvement Period
The Supreme Court’s central task was to determine whether the circuit
court clearly erred or abused its discretion in finding that S.D. was not likely to fully participate in an improvement period.
The Court emphasized several facts:
- S.D. knowingly allowed the children to have unsupervised contact
with their parents, despite explicit supervised-visitation provisions in
the 2019 dispositional order and despite the 2022 denial of the
parents’ motion to reinstate custodial rights.
- She effectively returned physical custody to the biological mother
(the children said they lived at their mother’s house and spent more
time there than with S.D.), undermining the prior termination order.
- She took B.W. out of school and kept her out for an extended
period—one month of absences, many unexcused—without establishing an
alternative educational program.
- She listed the parents as authorized individuals to sign the
children out of school, which is inconsistent with the parents’
terminated custodial status and the requirement for supervised contact.
- Her psychological evaluation showed a persistent pattern of
minimizing or rejecting the bases for the parents’ prior CPS and
criminal cases, and a belief that her views superseded the court’s
authority.
In other words, the Court was not persuaded by S.D.’s late-stage promise
at the dispositional hearing to “take responsibility” and accept
services. Against the weight of:
- Her long-standing defiance of court orders,
- Her minimization of the parents’ serious prior misconduct, and
- The psychological opinion that her prognosis for improvement was poor,
the circuit court was entitled to view her dispositional testimony as a
“feeble attempt” to secure an improvement period rather than a genuine
commitment to change.
2. The Necessity of Genuine Acknowledgment of Neglect
The Timber M./Charity H. line of cases frames acknowledgment as
a substantive prerequisite, not a mere formal step. The Supreme Court
applied that principle straightforwardly:
- S.D. continued to insist that she did not know about the
no-contact requirements arising from the prior abuse and neglect case,
even though she had testified earlier that she was aware the 2019 order
required supervised visitation and that the court had denied the
parents’ motion to reinstate custody.
- She characterized her violation of the dispositional order as
“reasonable,” underscoring that she did not see her conduct as wrongful.
The Court concluded that this refusal to acknowledge wrongdoing made the
problem “untreatable” in the sense that S.D. would not sincerely engage
in the behavior changes required to protect the children. In that
context, an improvement period would merely delay permanency for the
children with little prospect of success.
3. Use of Psychological Evidence
The psychological evaluation played a significant role in shaping both the circuit court’s and the Supreme Court’s views:
- The evaluator found S.D. had a “defensive response style” and that
she rationalized or undermined the bases for both the CPS and criminal
cases involving the parents.
- The evaluator highlighted her belief that “the rules either did
not apply to her” or that her beliefs should “overrule the judgments of
the [c]ourt.”
- These traits led the evaluator to conclude that her prognosis for
improved parenting was poor, and there was no reason to believe she
would comply with court directives moving forward.
The Supreme Court accepted this expert assessment as a valid and
important indicator of S.D.’s future behavior. The evaluation
corroborated the evidence of actual noncompliance (unsupervised contact,
residential arrangement, educational neglect), strengthening the
conclusion that she was not a good candidate for an improvement period.
4. Best Interests of the Children and “No Less Restrictive Alternative”
While the opinion does not elaborate extensively on the best interests analysis, it notes that:
- The circuit court concluded termination was in the children’s best interests.
- It also found no reasonable likelihood that S.D. could substantially correct the neglect in the foreseeable future.
- It determined there was no less restrictive alternative to termination available.
These findings align with West Virginia law requiring that termination
of custodial/guardianship (or parental) rights be a last resort,
justified only when:
- Conditions cannot be adequately corrected within a reasonable time, and
- Continuation of the legal relationship is contrary to the child’s welfare.
Given that:
- The parents’ rights had already been terminated due to severe neglect and felony convictions,
- S.D. actively and knowingly re-exposed the children to unsupervised time with those parents,
- The children suffered emotional distress, and
- Alternative permanency (guardianship in the current placement) was available,
the conclusion that termination of S.D.’s guardianship was in the
children’s best interests is doctrinally consistent and practically
compelling.
5. Terminology: Parental vs. Guardianship Rights
An interesting technical aspect of the decision is the Court’s
clarification regarding the nature of S.D.’s rights. The written order
referred to the termination of “parental and custodial rights,” but S.D.
was a legal guardian, not a biological or adoptive parent.
The Supreme Court resolved this by looking to the transcript, where the
circuit court stated it was terminating “all parental rights, or[] all
custodial rights or any rights she may have by virtue of being a
custodian to these children.” This indicates:
- The lower court intended to extinguish whatever legal rights S.D.
had with respect to the children—whether framed as custodial,
guardianship, or in loco parentis.
- The Supreme Court interpreted the order accordingly, treating it
as a termination of custodial and guardianship rights rather than
parental rights per se.
Substantively, this reinforces that guardians and custodians are fully
subject to abuse and neglect jurisdiction and can have their legal
relationship to the child permanently severed when they fail to protect
the child or defy court orders.
6. Joinder of Parents and Harmless Error
Finally, the Court addressed—primarily in a procedural posture—S.D.’s
claim that the parents should have been added as parties. Even though W.
Va. Code § 49-4-601(b) calls for parents, guardians, and custodians to
be named, the Court declined to accept S.D.’s argument because:
- She did not prove, via the record, that the issue was properly raised and ruled upon below.
- She did not articulate how the parents’ absence as formal parties
prejudiced her ability to defend against the allegations or affected the
outcome of her case.
Citing In re Stephen Tyler R., the Court observed that even if
there had been a technical violation of the joinder requirement, such a
violation would be harmless unless it “substantially frustrate[d] the
purpose of the Rules of Procedure for Child Abuse and Neglect
Proceedings and related statutes.” S.D. offered no such showing.
This aspect of the decision effectively balances strict statutory
language (regarding who must be joined) against practical realities and
the overarching goals of child safety and permanency. It also reaffirms
that appellants bear the burden of demonstrating both error and
prejudice.
C. Impact and Significance
1. Implications for Legal Guardians and Custodians
A central contribution of this case is its clear application of abuse
and neglect principles commonly associated with parents to the context
of legal guardians:
- Guardians are subject to the same expectations of compliance with court orders and protective measures as parents.
- Guardians who align themselves with previously terminated and
criminally-convicted parents, in defiance of court orders, risk having
their own custodial and guardianship rights terminated.
- Guardians cannot unilaterally “transition” children back to their
biological parents outside the formal, court-supervised process.
This has practical significance, particularly where relatives or former
foster caregivers have become permanent guardians. It underscores that permanency
carries continuing legal responsibilities and that any effort to alter
the child’s placement or contact with prior abusers must proceed through
the court, not private arrangements.
2. Reinforcement of Strict Standards for Improvement Periods
The decision reinforces several themes in the jurisprudence on improvement periods:
- Improvement periods are a privilege, not a right. They are
reserved for those who genuinely acknowledge the problem and demonstrate
a strong likelihood of full participation.
- Verbal assurances made at the eleventh hour (e.g., during the
dispositional hearing) may not overcome a pattern of defiance, denial,
or minimization of prior misconduct.
- Psychological evaluations and DHS/GAL assessments can carry
significant weight in evaluating whether improvement is realistically
likely.
- Circuit courts have broad discretion under Tonjia M. to deny an improvement period where the evidence suggests that no meaningful change is forthcoming.
For practitioners, this decision signals that “I’ll comply now” is not
enough when the record shows an entrenched refusal to follow court
orders and an ongoing alliance with those whose rights were terminated.
3. Emphasis on Obedience to Prior Dispositional Orders
The case also highlights that prior dispositional orders from abuse and
neglect proceedings remain operative and must be scrupulously followed:
- S.D. knew the 2019 disposition required supervised-only parental visitation.
- She knew the parents’ 2022 motion to reinstate custody had been denied.
- Nonetheless, she allowed unsupervised contact and effectively returned the children to their mother’s home.
This behavior was treated not as a minor technical violation but as a
core failure to protect, justifying a new abuse and neglect petition
against the guardian herself and, ultimately, the termination of her
guardianship.
4. Procedural Lessons: Preserve Issues and Build the Record
The Court’s handling of the joinder argument offers sobering procedural lessons:
- Issues not properly raised, ruled upon, and documented in the record will generally not be considered on appeal.
- Even arguable statutory violations (such as failure to join
necessary parties) will not produce reversal absent a demonstration of
actual prejudice and substantial frustration of the statutory scheme’s
purposes.
- Rule 10(c)(7) is not a mere formality; failure to provide precise record citations can be fatal to an assignment of error.
For child welfare attorneys, this underscores the need to:
- Make clear, on-the-record motions and objections,
- Obtain explicit rulings, and
- Ensure those matters are properly documented in the appendix for appeal.
V. Complex Concepts Simplified
The opinion uses several technical terms and doctrines. The following
explanations are designed for readers less familiar with abuse and
neglect proceedings.
1. Abuse and Neglect Proceeding
This is a civil case brought by the state (through DHS) alleging that a child is abused or neglected. The court determines:
- Whether abuse or neglect has occurred (the adjudicatory phase), and
- What should happen to the child and the adult’s rights going forward (the dispositional phase).
2. Adjudicatory vs. Dispositional Hearing
- Adjudicatory hearing: The court decides whether
the allegations of abuse or neglect are proven. In this case, the court
found S.D. neglected the children by allowing unauthorized parental
contact and by educational neglect.
- Dispositional hearing: The court decides what to
do in light of the adjudication—e.g., return the child, impose
conditions, order an improvement period, or terminate
parental/guardianship rights. Here, the court denied an improvement
period and terminated S.D.’s guardianship and custodial rights.
3. Improvement Period
An “improvement period” is a time-limited, court-supervised plan during
which the respondent (parent/guardian/custodian) receives services (such
as counseling, parenting classes, or drug treatment) and must comply
with specific conditions to correct the problems that led to the abuse
or neglect finding.
To obtain a post-adjudicatory improvement period:
- The respondent must request it, and
- Must prove by clear and convincing evidence that they are likely to fully comply with and participate in it.
If the court is not convinced that improvement is likely, it can deny the request, as it did in S.D.’s case.
4. “Clear and Convincing Evidence”
This is a standard of proof higher than “more likely than not” but lower
than “beyond a reasonable doubt.” It requires the evidence to be highly
and substantially more likely to be true than not, and that the
fact-finder have a firm belief or conviction in its factuality.
Here, S.D. had to show by clear and convincing evidence that she was
likely to fully participate in an improvement period. Her long history
of noncompliance and refusal to acknowledge wrongdoing prevented her
from meeting that burden.
5. “No Reasonable Likelihood of Substantial Correction”
When a court finds there is “no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the
near future,” it may proceed to terminate parental or guardianship
rights. That phrase essentially means:
- The problems (e.g., failure to protect, disregard for court orders) are so entrenched and persistent
- That, given the child’s need for timely permanency, the court does
not believe the adult can fix them within a time frame that is fair to
the child.
6. “Less Restrictive Alternative”
Before terminating parental or guardianship rights, courts must consider
whether there is a less drastic action that would adequately protect
the child (for example, a temporary removal combined with services, or a
supervised placement while the adult works an improvement period). If
no such alternative will adequately protect the child and promote
permanency, termination may be ordered.
In this case, the circuit court found no less restrictive alternative
was available that would sufficiently protect the children, given S.D.’s
defiance and alliance with the previously-terminated parents.
7. Guardian, Custodian, and In Loco Parentis
- Guardian: A person appointed by a court with legal authority to care for and make decisions for a child.
- Custodian: A person who has actual physical possession and care of the child and may also hold legal custodial rights.
- In loco parentis: A person who acts “in the place
of a parent” and assumes parental responsibilities, even without formal
guardianship or adoption.
West Virginia’s abuse and neglect statutes and rules expressly extend to
“parent[s], guardian[s], custodian[s], [and] other person[s] standing
in loco parentis,” which is why S.D. as a guardian was fully subject to
these proceedings.
8. Harmless Error
Not every legal or procedural error requires reversal. An error is “harmless” if it:
- Did not prejudice the complaining party in a meaningful way, and
- Did not substantially undermine the purposes of the governing statutes or procedural rules.
In In re B.W. and N.W., the Supreme Court held that even if
there had been some technical error related to joinder of the biological
parents, S.D. did not show that it harmed her or frustrated the goals
of the child protection system. Thus, any such error would be harmless.
VI. Conclusion
In re B.W. and N.W. is a significant reaffirmation and
application of key principles in West Virginia’s child abuse and neglect
jurisprudence, particularly as they apply to legal guardians:
- Guardians are held to the same standard as parents in following
court orders and protecting children from prior abusers whose rights
were terminated.
- An improvement period is not automatic; it requires a clear
showing that the respondent is likely to fully participate, grounded in
genuine acknowledgment of neglect and a demonstrable willingness to
change.
- Persistent defiance of court orders, minimization of prior abuse
or neglect, and psychological indicators of entitlement and
rule-disregard can justify both the denial of an improvement period and
the termination of guardianship rights.
- Failure to preserve issues in the record, and failure to show how
any procedural irregularity caused prejudice or frustrated statutory
purposes, will preclude relief on appeal.
By affirming the circuit court’s decision, the Supreme Court of Appeals
of West Virginia sends a clear message: guardians who use their position
to circumvent prior abuse and neglect determinations and to reintroduce
children to unsafe environments—while refusing to recognize the
wrongfulness of their conduct—cannot maintain legal control over those
children. The case underscores the centrality of the child’s safety,
emotional well-being, and need for stable permanency in every stage of
abuse and neglect proceedings.
Full Article & Source:
Failure of a Legal Guardian to Acknowledge Neglect and Obey Visitation Restrictions Justifies Denial of an Improvement Period and Termination of Guardianship: Commentary on In re B.W. and N.W.
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