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.

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.