In re A.F., 866 S.E.2d 114

Background

DHHR filed an abuse-and-neglect petition after the infant's mother, M.M., overdosed and tested positive for methamphetamine, amphetamine, and fentanyl; the father, J.F., had been incarcerated since Nov. 2019 and was alleged unable to protect the child.
At adjudication the circuit court found Father abusive/neglectful because incarceration left him without a safe home and unable to protect the child from Mother’s drug use; Mother received an improvement period.
Father remained incarcerated throughout the proceedings, invoked the Fifth Amendment at disposition, and sought a post-adjudicatory improvement period (including remote participation); DHHR opposed due to incarceration and uncertain confinement length.
The circuit court denied an improvement period and terminated Father’s parental rights on Nov. 20, 2020, citing primarily his incarceration and the speculative timing of his criminal proceedings.
On appeal the Supreme Court of Appeals found the circuit court’s Cecil T. analysis deficient but, in light of later developments (Father’s guilty plea to felon-in-possession and 78‑month sentence; Mother’s parental rights later involuntarily terminated; permanency plan adoption by grandparents), conducted its own Cecil T. review and affirmed termination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether terminating Father’s parental rights was error where incarceration was primary basis	Father: pretrial incarceration and lack of conviction make termination premature; if Mother succeeds in her improvement period, Father’s adjudication basis would disappear	DHHR: incarceration and uncertain confinement length frustrate permanency and make improvement period futile	Court: Affirmed termination — after Father’s subsequent guilty plea and 78‑month sentence, incarceration’s nature and length justified termination for child’s permanency
Whether Father was entitled to a post‑adjudicatory improvement period	Father: could participate remotely and improvement likely tethered to Mother’s success	DHHR: incarceration prevents meaningful participation and would unreasonably delay permanency	Court: Denial proper — long confinement made an improvement period futile and contrary to child’s best interest
Whether circuit court performed proper Cecil T. analysis when incarceration was basis for termination	Father: court failed to give weight to lack of conviction and uncertain sentence	DHHR: Cecil T. factors support termination given offense nature and potential length of confinement	Court: Circuit court’s written Cecil T. analysis was inadequate, but appellate court performed its own Cecil T. review and found termination justified
Whether child’s best interest/permanency favored termination given later developments (Mother’s termination and adoption plan)	Father: permanency could be preserved if Mother succeeded; termination of Father would be premature	DHHR: with Mother’s rights now terminated and adoption by grandparents planned, termination serves child’s need for permanency, stability, continuity	Court: Held child’s best interest supports termination to allow permanency via grandparents’ adoption

Key Cases Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (court must evaluate offense nature, confinement terms, and incarceration length when incarceration is the basis for termination)
In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (clearly erroneous standard for review of circuit court factual findings in abuse-and-neglect cases)
In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (termination may be used without less‑restrictive alternatives when no reasonable likelihood conditions can be corrected; child’s health and welfare paramount)
In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (courts need not pursue speculative parental improvement, especially for children under three)
Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965) (appellate court may affirm on any correct legal ground shown by the record)