Background
In October 2023, the West Virginia Department of Human Services filed an abuse and neglect petition in Greenbrier County Circuit Court regarding M.A.-1, a young child, and her half-brother. The petition named both the children’s legal guardian — their maternal grandmother, D.W. — and M.A.-1’s biological father, M.A.-2 (the petitioner). The DHS alleged that D.W. failed to adequately supervise the children, and that the father neglected M.A.-1 by failing to provide housing, financial support, or emotional support due to his incarceration. At adjudication in January 2024, the father stipulated that M.A.-1 was neglected as a result of his failure to provide emotional or financial support while incarcerated.
The father had been convicted in 2023 of possession with intent to distribute fentanyl in both West Virginia and South Carolina — charges arising from separate arrests in 2021, the second of which occurred while he was out on bond for the first. He received a three-to-fifteen-year sentence in West Virginia and a concurrent three-year sentence in South Carolina. At the dispositional hearing in June 2025, the father testified that he had maintained sobriety since 2023, completed numerous prison programs including substance abuse therapy and parenting education, and hoped to receive parole in October 2025. He also testified that he had maintained weekly phone contact with M.A.-1 until February 2025, when she was placed with a foster family.
The circuit court found that the father had been largely absent from M.A.-1’s life due to his incarceration and that, before his incarceration, he had left the child primarily in others’ care while engaging in substance abuse and criminal activity. The court also noted that M.A.-1 had been in out-of-home placement for nearly twenty months, did not wish to have further contact with her father, and was in need of permanency and continuity of care. Finding no reasonable likelihood that conditions of neglect could be substantially corrected in the near future, the circuit court terminated the father’s parental rights in its June 11, 2025, order.
The Court’s Holding
The Supreme Court of Appeals of West Virginia unanimously affirmed the circuit court’s termination order. The court rejected the father’s argument that the circuit court should have imposed a less restrictive alternative — specifically, guardianship — rather than terminating his parental rights. Applying a clear-error standard to the factual findings and de novo review to legal conclusions, the court held that the evidence supported the circuit court’s determination that there was no reasonable likelihood the conditions of neglect could be substantially corrected in the near future.
The court reaffirmed that under West Virginia law, termination of parental rights may proceed without first employing less restrictive alternatives when no reasonable likelihood of correction exists, citing Syllabus Point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). It further invoked In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), for the proposition that even where incarceration is the sole basis for a parent’s inability to correct conditions of neglect, termination is permissible when the circuit court properly weighs the nature of the offense, the terms and length of confinement, and the child’s paramount need for permanency, security, stability, and continuity. The court found the circuit court had done exactly that.
Key Takeaways
- Incarceration alone can support termination of parental rights in West Virginia when the circuit court properly analyzes the nature of the offense, the confinement terms, and the child’s best interests — even if the parent has made rehabilitative progress while incarcerated.
- A parent’s hope for early parole does not preclude a finding of no reasonable likelihood of correction, particularly where the underlying sentence is three to fifteen years and the child requires immediate permanency.
- West Virginia courts are not required to exhaust less restrictive alternatives such as guardianship before terminating parental rights when the statutory standard — no reasonable likelihood of substantial correction in the near future — is met.
- A child’s expressed wish to have no further contact with a parent, combined with nearly twenty months in out-of-home placement, can weigh in favor of termination to serve the child’s need for stability and continuity.
Why It Matters
This decision reinforces West Virginia’s child-welfare framework by confirming that parental incarceration — particularly on serious felony drug convictions — can independently support termination of parental rights when the totality of circumstances demonstrates an inability to remedy neglect within a timeframe consistent with the child’s need for permanency. Courts need not wait for a parent’s release to assess whether conditions can be corrected; the length and nature of the sentence are proper factors in that analysis.
For practitioners in abuse and neglect proceedings, the case underscores that rehabilitative efforts made during incarceration, while relevant, are not dispositive. Where a parent’s pre-incarceration history reflects minimal involvement and the child has bonded with a foster family with adoption as the permanency plan, circuit courts retain the authority — and may have the obligation — to prioritize the child’s stability over less restrictive dispositional alternatives.