Drug-Impaired Parenting Can Establish Neglect Without Drug Use in a Child’s Presence

1. Introduction

This decision reaffirms that parental substance abuse may establish neglect when it compromises a parent’s ability to supervise and protect a child, even without proof that the parent consumed drugs in the child’s presence. It also illustrates when a court may terminate parental rights without first employing a less restrictive disposition and how procedural objections must relate to the record and the relief sought.

The petitioner, Mother T.M., appealed an order terminating her parental rights to two young children, K.M.-1 and K.M.-2. The West Virginia Department of Human Services (“DHS”), the children’s guardian ad litem, and their temporary legal guardian, S.H., participated in the proceedings. The mother challenged her adjudication, the adequacy of services and case planning, the rejection of less restrictive alternatives, and the DHS’s compliance with relative-placement requirements.

The Supreme Court of Appeals affirmed. Although the decision applies existing statutes and precedents rather than announcing a new syllabus rule, it provides a significant application of the distinction between using drugs in front of children and caring for children while impaired by drugs.

2. Background and Procedural History

From Private Guardianship to Abuse-and-Neglect Proceedings

The case began when S.H., the mother’s neighbor, sought legal guardianship in December 2024. Her concerns included the mother’s substance abuse, unsafe home conditions, and anticipated incarceration. Although the original guardianship petition was not included in the appellate appendix, its allegations were recounted in the guardian ad litem’s subsequent abuse-and-neglect petition.

According to the record, the mother entrusted the children to S.H. despite barely knowing her. S.H. described an incident in which the mother drove the children to her home while visibly intoxicated and intermittently losing consciousness, with the younger child riding unrestrained on the mother’s lap. S.H. also described a filthy home contaminated by cat urine and children who were malnourished and ill when they entered her care.

After being appointed to investigate, the guardian ad litem filed an abuse-and-neglect petition in January 2025. By then, S.H. had obtained temporary guardianship. The DHS later filed amended petitions.

Admissions, Evaluations, and Contested Adjudication

The mother admitted in her answer that drug abuse had compromised her parenting and resulted in neglect. The court nevertheless proceeded to a contested adjudicatory hearing after the DHS and guardian ad litem questioned the sufficiency of her proposed admissions.

Assessments documented a substantial substance-abuse history and recommended treatment and other services. A psychologist diagnosed severe stimulant use disorder associated with cocaine use and offered a “fair, but guarded” prognosis conditioned on full compliance with recommendations.

At the July 2025 adjudicatory hearing, witnesses described the mother’s overdose, efforts to evade drug screening, positive drug tests, and impaired caregiving. The mother acknowledged cocaine abuse but denied being under the influence around the children and disputed the allegations about her home.

The circuit court found clear and convincing evidence of abuse and neglect arising from substance abuse that compromised parenting and threatened the children’s safety. It also found neglect based on unsuitable housing, a ground the mother did not challenge on appeal.

Disposition

At disposition, a CPS worker testified that the mother discontinued Day Report Center services after approximately one month and failed to resume them when given another opportunity. The DHS had also referred her for substance-abuse treatment, parenting and adult life skills education, and anger management.

The circuit court denied an improvement period and terminated parental rights. It relied on treatment noncompletion, failure to reengage with services, additional criminal conduct and resulting incarcerations, and violations of its no-contact directive concerning S.H. and the children. It found no reasonable likelihood of substantial correction in the near future and concluded that termination was necessary for the children’s welfare.

The fathers’ parental rights were also terminated. The permanency plan was adoption in the children’s current placement.

3. Summary of the Opinion

The Supreme Court of Appeals rejected the mother’s principal arguments:

1. Drug consumption need not occur in the children’s presence. The decisive evidence showed impaired caregiving that endangered the children.
2. Temporary guardianship did not defeat adjudication. The petition alleged recent neglectful conduct, supported by evidence, and temporary caregiving arrangements did not erase the mother’s responsibilities.
3. The record established remedial efforts. The DHS made assessment and service referrals, including an effort to restore the mother’s participation after she stopped treatment.
4. The statutory grounds supported termination. Repeated nonparticipation and the children’s need for safety and permanence justified termination without an intervening less restrictive disposition.
5. The case-plan objections did not establish reversible error. The plan was substantive, and the circuit court used an authorized procedure to require modifications.
6. The acknowledged relative-list omission did not warrant relief on this appeal. The mother identified neither an available alternative caregiver on appeal nor prejudice connecting the omission to termination.

The court did not separately review the denial of an improvement period because the mother failed to develop a specific appellate argument challenging that ruling.

4. Analysis

A. Precedents Cited and Their Influence

The two decisions titled In re S.C. serve different purposes: the 1981 decision concerns the proof required at adjudication, while the 2023 decision addresses substance abuse, supervision, and temporary caretakers.

B. Neglect Turns on Impaired Parenting, Not the Location of Drug Consumption

The mother focused on the circuit court’s statement that she abused illegal substances “in the presence” of the children. The appellate court instead examined the complete finding: substance abuse had compromised her parenting to a degree that posed an imminent risk to their health and safety.

Under West Virginia Code § 49-1-201, neglect includes actual or threatened harm resulting from a parent’s present refusal, failure, or inability to provide necessary supervision. The relevant inquiry therefore concerned the effect of the mother’s substance abuse on caregiving, not whether someone witnessed drug consumption beside the children.

The evidence supplied a concrete connection between impairment and danger: the mother drove with the children while losing consciousness, including with an infant unrestrained on her lap. Her admissions and other testimony reinforced that evidence.

The decision does not make every instance of parental drug use sufficient for adjudication. Its reasoning depends on clear and convincing evidence linking substance abuse to compromised supervision and actual or threatened harm.

C. Temporary Care Does Not Erase Existing Neglect

The mother also argued that the relevant conditions did not exist when the petition was filed because S.H. had obtained temporary guardianship. The court rejected that position because the petition alleged recent impaired caregiving and the adjudicatory evidence supported those allegations.

Applying the 2023 In re S.C. decision, the court explained that placing children with a temporary caretaker does not itself discharge parental supervision and decision-making responsibilities. On this record, the guardianship did not eliminate the basis for adjudicating the conduct that brought the children into protective care.

This reasoning should not be expanded into a rule that responsible temporary care is itself neglectful. The relevant circumstances included dangerous prior caregiving and unresolved substance-abuse conditions.

D. Remedial Services Must Be Assessed Against the Actual Record

The mother asserted that the DHS had provided no remedial services. The court found that assertion contradicted by referrals for her substance-abuse assessment, psychological evaluation, and Day Report Center services.

Her prior enrollment at the Day Report Center did not negate the DHS’s later effort to reconnect her with treatment after she voluntarily stopped participating. The critical distinction was between services not offered and services offered but not used.

The opinion therefore did not excuse the DHS from providing relevant assistance. It concluded that assistance had been offered and that the circuit court considered those efforts.

Citation clarification: In discussing this argument, the supplied opinion refers to West Virginia Code § 49-1-601(i). Earlier, it identifies § 49-4-601(i) as the adjudicatory provision. This apparent citation inconsistency does not affect the court’s record-based rejection of the mother’s claim.

E. Termination Required Two Findings, Not Exhaustion of Every Alternative

West Virginia Code § 49-4-604(c)(6) permits termination when there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future and termination is necessary for the children’s welfare.

Section 49-4-604(d) defines the first requirement through demonstrated inability to solve the problems independently or with assistance. Subsection (d)(3) identifies failure to respond to a reasonable family case plan or other rehabilitative efforts as a qualifying circumstance.

The circuit court’s findings addressed both requirements. The mother left treatment, failed to resume services despite another opportunity, and did not engage in other rehabilitative assistance. The court also considered continued criminal conduct, resulting incarcerations, and violations of its no-contact directive. The children’s young ages and need for safety and stability supported the welfare finding.

The conditional optimism in the psychological evaluation did not displace the evidence of actual nonparticipation. A prognosis dependent on compliance does not establish likely improvement when the parent repeatedly fails to comply.

Importantly, termination was not upheld simply because the mother had been incarcerated. The reasoning rested on the combined evidence of unresolved parenting problems, failed rehabilitation, and the children’s needs.

F. Case-Plan Modification Did Not Automatically Require a New Hearing

The mother characterized the DHS plan as lacking substance and a reunification pathway. The court instead described a comprehensive thirteen-page plan documenting services and her failure to participate. A recommendation of termination did not, by itself, make the plan deficient.

The procedural objection also failed because the governing rules provide different responses to a disputed plan:

• Rule 34(c) permits modification in accordance with the evidence presented at the hearing.
• Rule 34(d) permits rejection, submission of a revised plan, and rescheduling disposition within forty-five days.

The circuit court used the modification procedure, and the DHS filed modified plans incorporating the assessments and other changes. The opinion does not hold that courts may disregard case-plan deficiencies; it holds that the procedure used here was authorized.

G. Relative-Placement Compliance and Termination Are Distinct Questions

The DHS acknowledged failing to file the statutory list of known relatives and fictive kin required by West Virginia Code § 49-4-601a(2). The court did not characterize that omission as compliance. It nevertheless found no basis for appellate relief because the mother failed to explain how the omission prejudiced her or affected the termination findings.

The children already lived with a guardian the mother had selected. Of two individuals identified below, an aunt lived in the unsuitable parental home, and a former day care provider was not argued on appeal to qualify as fictive kin. No available alternative relative or fictive-kin placement was identified on appeal.

The distinction is important: a statutory preference concerning where children live does not necessarily undermine findings concerning whether parental rights must be terminated. The ruling is record-specific and should not be read as a general exemption from diligent-search or filing obligations.

H. Potential Impact

• Evidence will focus on parenting consequences. Testimony about impaired driving, inadequate supervision, and unsafe conditions may establish the necessary connection without eyewitness evidence of drug consumption.
• Service histories will remain central. Documented referrals, renewed opportunities, and parental responses bear directly on the likelihood of correction.
• Less restrictive alternatives require substantive justification. Their theoretical availability does not defeat supported statutory termination findings.
• Procedural challenges must be developed precisely. Parties should identify the governing rule, the actual defect, and its significance to the requested relief.
• Agency compliance remains important. The rejection of relief for an unexplained relative-list omission does not eliminate the underlying statutory duty.

5. Complex Concepts Simplified

Adjudication

The stage when the court determines whether the evidence establishes abuse or neglect.

Disposition

The later stage when the court decides the appropriate protective outcome, potentially including termination of parental rights.

Clear and convincing evidence

A demanding civil proof standard, higher than “more likely than not” but lower than proof beyond a reasonable doubt.

Improvement period

A court-authorized opportunity to address parenting problems through services and demonstrate progress. Its denial was not separately reviewed here because the appellate argument was undeveloped.

Less restrictive alternative

An available measure less severe than termination. Such measures need not be tried when the statutory requirements for immediate termination are satisfied.

Fictive kin

A qualifying adult who is not a relative but has an established, substantial relationship with the child.

Prejudice

A harmful effect relevant to the challenged decision or requested relief. The mother did not explain such an effect from the missing relative list.

De novo review

Independent appellate consideration of a legal question, without deference to the lower court’s legal conclusion.

6. Conclusion

In re K.M.-1 and K.M.-2 confirms that child-protection law addresses the consequences of parental substance abuse, not merely where drugs are consumed. Clear and convincing evidence of dangerous, drug-impaired caregiving supported adjudication, while repeated failure to engage in rehabilitation and the children’s need for stability supported termination.

The decision also preserves important distinctions: temporary care does not erase established neglect; placement preferences do not necessarily determine parental-rights outcomes; and procedural objections require developed arguments tied to the record. Its central lesson is that supported findings of uncorrectable conditions and child-welfare necessity can justify termination without intervening less restrictive alternatives.