Consent to Legal Guardianship Does Not Limit Court’s Authority to Terminate Parental Rights When No Reasonable Likelihood of Correction Exists

Introduction

In a memorandum decision issued on September 30, 2025, the Supreme Court of Appeals of West Virginia affirmed the termination of the parental rights of Petitioner Mother C.M. to three children—A.A., K.A., and A.R.—in In re A.A., K.A., and A.R., No. 24-474 (Hampshire County CC-14-2022-JA-62, -63, -64). The Court held that a parent’s consent to a less restrictive alternative—here, legal guardianship with relatives—does not preclude termination where the evidence supports the statutory findings that (1) there is no reasonable likelihood the conditions of neglect can be corrected in the near future and (2) termination is necessary for the children’s welfare.

The case arises from a December 2022 abuse and neglect petition alleging substance abuse, substandard living conditions, and failure to provide basic care. After adjudication for neglect and a lengthy improvement period (including an extension), the mother asked the court to accept a voluntary custodial relinquishment in favor of legal guardianship by paternal grandparents. The circuit court, however, found her noncompliance persistent and substantial—multiple positive drug/alcohol screens, months-long gaps in screening, violation of supervised visitation terms, and refusal of inpatient treatment. Concluding that guardianship would not provide meaningful security or permanency, the court terminated parental rights. The Supreme Court affirmed.

Summary of the Opinion

The Supreme Court reviewed the circuit court’s factual findings for clear error and its legal determinations de novo, citing syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). The mother’s sole appellate argument was that the court erred by terminating her parental rights instead of establishing legal guardianship—a less restrictive alternative to termination—to which she had earlier consented.

The Court rejected this argument, reiterating that termination “may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood…that conditions of neglect or abuse can be substantially corrected,” quoting syllabus point 5 (in part) of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), which itself quotes In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). The Court emphasized that a parent’s attempt to consent to a different disposition does not constrain the circuit court’s authority to terminate parental rights under W. Va. Code § 49-4-604(c)(6) when statutory findings are met, including the definition of “no reasonable likelihood” in § 49-4-604(d)(3).

Given the undisputed record of noncompliance—approximately twenty-seven positive tests for drugs or alcohol, over two months without screening, refusal of inpatient rehabilitation, and visitation violations—the Supreme Court held the circuit court’s findings were supported by ample evidence. It affirmed the conclusion that guardianship would not provide the needed safety, stability, and permanency, and therefore termination was proper.

Detailed Analysis

Precedents Cited and Their Influence

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), syl. pt. 1:
Establishes the standard of review—clear error for factual findings and de novo for legal questions. This framed the appellate posture: the Supreme Court did not re-weigh evidence but assessed whether the circuit court’s factual determinations were clearly erroneous and whether the legal standards were correctly applied.
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), syl. pt. 5 (in part):
Reaffirms that termination may be employed without intervening less restrictive alternatives when there is no reasonable likelihood of substantial correction of neglect/abuse. The Court used this precedent to reject the mother’s claim that the court was required to accept legal guardianship as a less restrictive option.
In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980), syl. pt. 2:
Provides the seminal statement that less restrictive alternatives need not be tried when the statutory standard is met. Kristin Y. quotes R.J.M. and together they form a bedrock rule: once the statutory findings are supported by the record, termination may proceed without adopting a guardianship or other intermediate disposition.

Statutory Framework Applied

W. Va. Code § 49-4-604(c)(6):
Authorizes termination of parental rights “[u]pon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child.” The opinion quotes and relies on this provision to underscore that a parent’s consent to an alternative disposition (e.g., legal guardianship) does not negate the court’s statutory authority to terminate when the standard is met.
W. Va. Code § 49-4-604(d)(3):
Defines “no reasonable likelihood” to include situations where a parent has “demonstrated an inadequate capacity to solve the problem of abuse or neglect on their own or with help,” including failing to respond to or follow through with a reasonable family case plan or rehabilitative efforts. The Court applied this definition to the mother’s extensive noncompliance.

Core Legal Reasoning

The Supreme Court’s reasoning proceeded in three steps:

Confirming the proper legal standard and appellate posture. The Court reiterated that it would not re-try the case; it would defer to supported factual findings and apply legal principles de novo. This set the stage for an outcome grounded in the circuit court’s detailed record.
Assessing “no reasonable likelihood” under § 49-4-604(d)(3). The circuit court’s factual findings—twenty-seven positive drug/alcohol screens, a multi-month cessation of screening during the case, refusal of inpatient rehabilitation, violation of supervised visitation protocols, and the mother’s inability to provide a timeline for reunification—demonstrated failure to follow the family case plan and an inadequate capacity to remedy the conditions of neglect. On that evidence, the Supreme Court agreed that the statutory “no reasonable likelihood” standard was met.
Addressing the proposed less restrictive alternative (legal guardianship). The mother’s consent to legal guardianship did not control disposition. Under Kristin Y. and R.J.M., once the statutory findings are made and termination is necessary for the children’s welfare, the court need not adopt a less restrictive alternative. The circuit court expressly found that guardianship “would leave the children without any meaningful sense of security,” because the children needed “safety, stability, security, consistency, and permanency with fully committed adults.” The Supreme Court accepted these findings as adequately supported by the record.

Why Guardianship Was Not Enough Here

The opinion recognizes that guardianship can be an important permanency tool in some cases, especially with familiar kinship caregivers. But the circuit court found, and the Supreme Court accepted, that in this case guardianship would not provide adequate security and permanency. Several facts bear on that conclusion:

The mother’s prolonged noncompliance undermined confidence in near-term reunification or stability.
Visitation and safety boundaries were not respected (e.g., spending a weekend at her parents’ home with the children contrary to the supervised visitation plan).
The mother’s own proposal lacked a timeline for reunification, signaling ongoing uncertainty for the children.
The permanency pathway for all children had coalesced around adoption—A.A. and K.A. via anticipated paternal consent; A.R. in her current placement—further supporting the conclusion that durable permanency, not an interim guardianship, best served the children’s welfare.

Medical Cannabis in the Context of Court-Ordered Abstinence

An important, practical facet of the case is the mother’s claim that after obtaining a medical cannabis card in February 2024 she had not used illegal substances. The courts, however, looked to her compliance with specific court orders and the family case plan—both of which prohibited THC and required continued drug screening. The mother refused to provide details supporting the medical cannabis authorization, stopped screening for over two months, and continued to test positive when she did screen. The takeaway is straightforward: a later-acquired medical cannabis authorization does not excuse a parent from complying with specific, extant court orders requiring abstinence and monitoring during an abuse/neglect case.

Impact and Future Significance

This decision reinforces several durable principles in West Virginia child welfare jurisprudence:

Parents cannot compel a less restrictive disposition by consent. Even where kinship guardianship appears agreeable to the parties, the court must prioritize statutory findings and the children’s welfare. If the record establishes “no reasonable likelihood” of correction in the near future and termination is necessary, guardianship is not required.
Permanency and predictability are paramount. The Court’s endorsement of the circuit court’s finding that guardianship would not deliver a “meaningful sense of security” underscores a strong preference for permanent, stable solutions over indeterminate arrangements when parental remediation is not forthcoming.
Compliance must be consistent and verifiable. The case illustrates how gaps in drug screening, repeated positive tests, and refusal of higher-intensity treatment (e.g., inpatient rehabilitation) disrupt an improvement period and support findings under § 49-4-604(d)(3).
Medical marijuana does not override court-ordered abstinence. When court orders explicitly prohibit THC use and require testing, a medical cannabis card does not alter those obligations absent a modification of the order.

For practitioners, the decision counsels:

For DHS and GALs: Build a clear record of case-plan requirements, compliance gaps, and the children’s permanency needs. Demonstrate why guardianship would not achieve durable stability when termination is sought.
For parents’ counsel: Ensure clients understand that proposed guardianship or voluntary custodial relinquishment will not forestall termination if statutory criteria are satisfied. Where medical treatment involves controlled substances (including THC), promptly seek modification of abstinence orders rather than unilaterally deviating from them.
For courts: Articulate specific findings on why less restrictive options do not serve the children’s welfare in the face of ongoing noncompliance, and tie those findings to § 49-4-604(d)(3) and the children’s need for permanency.

Complex Concepts Simplified

Improvement Period: A court-approved timeframe during which a parent must comply with a plan (e.g., sobriety, treatment, parenting classes, stable housing) to correct conditions that led to abuse/neglect findings. Compliance is monitored; failure to comply can lead to more restrictive dispositions, including termination.
No Reasonable Likelihood of Correction: A statutory determination that, based on the parent’s conduct and response to services, the issues causing abuse/neglect will not be substantially corrected in the near future. Evidence includes failing to follow through with case plans and services.
Disposition: The court’s final decision about the child’s placement and parental rights after adjudication of abuse/neglect. Options range from returning the child home under conditions, to legal guardianship, to termination and adoption.
Less Restrictive Alternative: A disposition (like guardianship with relatives) that preserves more parental rights than termination. Courts are not required to adopt a less restrictive alternative if statutory findings justify termination.
Legal Guardianship vs. Adoption: Guardianship can provide stability but is generally more modifiable and less permanent than adoption. Adoption typically follows termination (or voluntary relinquishment) of parental rights and provides greater legal permanence.
Standard of Review: On appeal, factual findings are set aside only if clearly erroneous (a high bar), while legal conclusions are reviewed anew (de novo). This deference often results in affirmance where the record supports the trial court’s findings.

Conclusion

In re A.A., K.A., and A.R. reaffirms a foundational rule of West Virginia child welfare law: when a circuit court finds, based on a supported record, that there is no reasonable likelihood the conditions of neglect can be substantially corrected in the near future and termination is necessary for the children’s welfare, the court may terminate parental rights without first imposing a less restrictive alternative such as legal guardianship. A parent’s consent to guardianship does not curtail that authority.

The decision underscores the primacy of permanency and stability for children, the necessity of strict and verifiable compliance with improvement-period conditions (including abstinence and screening), and the limits of post hoc justifications (such as a newly obtained medical cannabis card) when they conflict with unmodified court orders. In affirming termination, the Supreme Court reinforces that the best interests of the child—operationalized through statutory standards and supported factual findings—control the dispositional outcome.

Case: In re A.A., K.A., and A.R., No. 24-474 (W. Va. Sept. 30, 2025) — Memorandum Decision affirming the July 2, 2024 order of the Circuit Court of Hampshire County.