Adjudicated Substance Abuse and Related Noncompliance Can Support Termination Without Lesser Alternatives

Introduction

In In re E.M. and K.M., the Supreme Court of Appeals of West Virginia affirmed the termination of a mother’s parental rights after prolonged services, inconsistent substance-abuse treatment, and repeated disengagement from the proceedings. The decision addresses two related questions: when a court may consider conduct that was not itself the subject of adjudication, and when termination may proceed without an intervening, less restrictive disposition.

The mother, T.M., argued that the circuit court improperly terminated her rights because of her continued relationship with the children’s stepfather, although she had been adjudicated for substance abuse rather than that relationship. She also maintained that termination was not the least restrictive alternative. The court rejected both arguments, finding that the disposition remained grounded in her adjudicated substance abuse and that the statutory requirements for termination were satisfied.

The decision is a memorandum disposition under West Virginia Rule of Appellate Procedure 21. Rather than announcing a new doctrinal test, it applies established principles to distinguish an impermissible new basis for termination from permissible consideration of a parent’s conduct during the case.

Background and Procedural History

The West Virginia Department of Human Services (“DHS”) filed an abuse and neglect petition in January 2024. It alleged that the mother and the children’s stepfather used methamphetamine while caring for E.M. and K.M., that their substance abuse impaired their parenting, and that the mother had entered inpatient rehabilitation. The petition was later amended to include allegations against the children’s biological father.

At the March 2024 adjudicatory hearing, the mother stipulated to substance abuse. The circuit court adjudicated her as an abusing and neglecting parent and granted a post-adjudicatory improvement period. Required services included counseling, multidisciplinary team (“MDT”) meetings, hearings, adult life skills classes, substance-abuse treatment, and drug screening.

Progress Followed by Repeated Setbacks

The record contained meaningful initial progress: the mother completed inpatient treatment and subsequently graduated from a third intensive outpatient program in July 2024. Those accomplishments, however, occurred alongside substantial setbacks:

• She tested positive for alcohol in March 2024 but denied drinking.
• Her first intensive outpatient program discharged her for failing to attend therapy and meetings.
• She subsequently tested positive for methamphetamine.
• She entered another outpatient program but left without completing it.
• After completing the third program, she refused drug screening and ceased contact with DHS by August 2024.

DHS also expressed concern about her relationship with the stepfather because of their shared substance-abuse history. In September 2024, he was arrested on a new felony charge of possession with intent to deliver fentanyl and methamphetamine and was incarcerated. The opinion describes an arrest and charge, not a conviction.

Additional Opportunity and Eventual Termination

After the post-adjudicatory improvement period expired, the circuit court granted the mother a post-dispositional improvement period in November 2024 and again required drug screening. In March 2025, DHS sought termination of that period because of her continued contact with the stepfather and physical threats toward MDT members during recorded telephone conversations with him. The court also noted that she had falsely testified about ending that contact, contrary to its directive.

The mother failed to appear at the initial dispositional hearing in July 2025 and again at the reconvened hearing in September, although counsel represented her. The court received a DHS report describing dishonesty, threats, lack of progress, and her failure to maintain contact with DHS since June 2025. It also took judicial notice of the entire case file as it concerned her.

The circuit court found that the mother had not successfully completed her improvement period, had misrepresented her relationship with the stepfather, and had stopped participating in the case. It concluded that there was no reasonable likelihood of substantially correcting the conditions of abuse and neglect in the near future and that termination was necessary for the children’s welfare. Its November 17, 2025, order terminated her parental rights.

Summary of the Opinion

The Supreme Court of Appeals unanimously affirmed on two principal grounds:

1. Termination remained grounded in adjudicated substance abuse. The circuit court considered substantial evidence of incomplete treatment, relapse, refused screening, and disengagement. The mother’s continued contact with the stepfather, violation of the court’s directive, and dishonesty were permissible dispositional considerations rather than an independent, unadjudicated foundation for termination.
2. The statutory findings permitted termination without lesser alternatives. The record supported the conclusion that the conditions could not be substantially corrected in the near future despite extensive services. The circuit court also found termination necessary for the children’s welfare, a finding the mother did not challenge on appeal.

The ruling concerned only the mother’s parental rights. The biological father’s rights remained intact while he participated in an improvement period. The stepfather’s custodial rights had been terminated. The children’s permanency plan contemplated either reunification with their biological father or adoption in their current placement.

Analysis: Precedents Cited

In re K.S.: The Standards of Appellate Review

The court cited syllabus point 1 of In re K.S., -- W. Va. --, 930 S.E.2d 400 (2026), for three distinct standards: substantive rulings are reviewed for abuse of discretion, factual findings for clear error, and legal questions de novo.

This framework matters because the mother’s appeal combined a legal objection about the permissible grounds for termination with a challenge to the chosen disposition. The appellate court independently considered the governing legal limits but did not simply replace the circuit court’s supported factual assessments or dispositional judgment with its own.

In re K.L.: Termination Must Remain Anchored to Adjudicated Conditions

The central limiting precedent was In re K.L., 247 W. Va. 657, 666, 885 S.E.2d 595, 604 (2022). It provides that “termination of parental rights may not be fundamentally premised on conditions of abuse and/or neglect upon which a parent has not been properly adjudicated.”

The mother invoked that rule to characterize continued contact with the stepfather as an unauthorized new ground for termination. The court rejected the characterization, not the rule. Substance abuse was the adjudicated condition, and the dispositional record contained substantial evidence directly addressing that condition.

The relationship evidence also had contextual relevance: the mother and stepfather shared the substance-abuse history that prompted the proceedings, and his new drug-related arrest occurred while the case was pending. Separately, her violation of the no-contact directive and dishonesty toward the court and MDT were matters the circuit court could consider at disposition.

Accordingly, the decision preserves the distinction drawn in In re K.L.. A court cannot substitute an unadjudicated condition as the fundamental basis for termination, but adjudication does not make all later evidence of noncompliance irrelevant.

In re Kristin Y.: Lesser Alternatives Need Not Always Intervene

The court cited syllabus point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), for the principle that termination may occur without intervening less restrictive alternatives when there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected.

This precedent answered the mother’s claim that the circuit court was required to select a lesser disposition. Read with West Virginia Code § 49-4-604(c)(6), the governing inquiry was whether the findings concerning correctability and the children’s welfare justified termination—not whether every conceivable alternative had first been attempted.

In re R.J.M.: The Earlier Source of the Lesser-Alternatives Principle

The relevant statement in In re Kristin Y. quoted syllabus point 2 of In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). Its inclusion establishes the longstanding foundation of the rule against requiring futile intervening dispositions.

The opinion did not separately analyze the facts of In re R.J.M.. Its role was doctrinal: it supplied the earlier authority for the principle applied through In re Kristin Y..

Analysis: Legal Reasoning

1. Adjudication Defines the Foundation; Disposition Evaluates the Response

The court’s reasoning depends on separating the established condition of abuse or neglect from evidence bearing on whether that condition can be remedied. The mother’s substance abuse supplied the adjudicated foundation. Her later treatment history, screening refusals, dishonesty, and withdrawal from services helped the court assess whether reunification had become realistically achievable.

The opinion therefore does not hold that disobeying any court order independently justifies termination. Nor does it authorize termination merely because a parent maintains a disfavored relationship. Its conclusion rests on the combined record and the continuing connection to adjudicated substance abuse.

2. Successful Treatment Episodes Did Not Resolve the Overall Question

The mother’s completion of inpatient treatment and one outpatient program did not establish sustained correction. The court considered those achievements within a longer pattern that included a positive methamphetamine screen, unsuccessful treatment attempts, later screening refusals, and disengagement.

This is an important distinction between completing a service and demonstrating an adequate capacity to remedy the underlying parenting problem. The opinion did not treat refused screens as automatically positive tests; rather, refusals formed part of the broader evidence of noncompliance.

3. The Statute Required Both Lack of Near-Term Correctability and Necessity for the Children

West Virginia Code § 49-4-604(c)(6) permits termination upon findings that:

1. There is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future; and
2. Termination is necessary for the child’s welfare.

Section 49-4-604(d) defines the first concept through the abusing adult’s demonstrated inadequate capacity to solve the problems of abuse or neglect, either independently or with help.

The extensive services and successive improvement periods were therefore important. The circuit court was evaluating not simply the existence of a substance-abuse problem, but the mother’s response to sustained assistance. Her continued noncompliance supported a prospective finding that substantial correction was not reasonably likely soon.

The children’s need for stability and their best interests supported the separate welfare finding. The appellate court specifically noted that the mother did not challenge that finding. The decision thus did not treat parental noncompliance alone as a substitute for considering the children’s welfare.

4. Nonappearance Was Evidence of Disengagement, Not an Automatic Default

The mother’s repeated failure to attend disposition reinforced the evidence that she had stopped participating. Nevertheless, the termination was not described as a default judgment based solely on absence. Counsel represented her, and the court relied on reports, the case file, her service history, and express statutory findings.

Potential Impact

The decision offers practical guidance for future abuse and neglect cases without displacing existing safeguards.

• For trial courts: Dispositional findings should clearly connect termination to adjudicated conditions while explaining how later conduct demonstrates continued risk or inadequate corrective capacity.
• For parents and counsel: Completion of individual programs is relevant but may not overcome a broader record of relapse, screening refusal, dishonesty, and disengagement.
• For DHS and guardians ad litem: A documented history of services and responses can substantiate the statutory prognosis. Misconduct should not merely be listed; its relationship to remediation and child welfare should be explained.
• For appellate litigation: A claim based on an unadjudicated issue must address the actual foundation of the termination order. A lesser-alternatives argument must confront both statutory findings.

The opinion’s reach remains fact-dependent. It does not establish that association with a person facing drug charges automatically warrants termination, that substance abuse is inherently uncorrectable, or that every unsuccessful improvement period must end in termination.

Complex Concepts Simplified

Adjudication

The stage at which the court determines whether alleged abuse or neglect has been established. Here, the mother stipulated to substance abuse.

Disposition

The stage at which the court decides the appropriate legal outcome after adjudication, including whether parental rights should continue or terminate.

Improvement period

A court-authorized opportunity to address the problems underlying the case through services and compliance with specified requirements.

Multidisciplinary team

The group involved in coordinating and reviewing the family’s services and progress.

Less restrictive alternative

An outcome short of terminating parental rights. The court need not use such an alternative when the statutory conditions for termination are established.

No reasonable likelihood of substantial correction

A forward-looking finding that the parent has demonstrated inadequate capacity to remedy the problems soon, even with assistance. It does not require proof that improvement is forever impossible.

Judicial notice of the case file

Here, the circuit court formally considered the existing case record concerning the mother, rather than limiting its assessment to the final hearing’s report.

Conclusion

In re E.M. and K.M. reinforces two complementary principles. Termination must remain fundamentally grounded in properly adjudicated abuse or neglect, but a court may consider subsequent noncompliance and dishonesty when assessing whether those conditions can be remedied. When substantial correction is not reasonably likely in the near future and termination is necessary for the children’s welfare, lesser alternatives need not intervene.

The decision’s significance lies in its cumulative assessment of the record: periods of treatment success did not outweigh repeated setbacks and eventual disengagement, while the children’s need for stability remained a separate and necessary part of the termination analysis.