Failure to Enter Court-Ordered Substance Abuse Treatment Supports “No Reasonable Likelihood” Finding and Termination of Parental Rights

Introduction

In re S.H., No. 24-555 (W. Va. Sept. 10, 2025), is a memorandum decision of the Supreme Court of Appeals of West Virginia affirming the termination of a father’s parental rights following his failure to initiate court-ordered substance abuse treatment. The case arises from a newborn’s severe neonatal abstinence syndrome (NAS) after the mother’s admitted heroin use near delivery. The West Virginia Department of Human Services (DHS) alleged that the father (J.W.), who was the mother’s boyfriend, was a heavy drug user, knew of the mother’s use during pregnancy, and failed to act protectively.

After the father stipulated to the abuse and neglect allegations and was adjudicated an abusing/neglecting parent, the circuit court granted a post-adjudicatory improvement period on the condition that he enroll in inpatient drug treatment within one week. He did not do so, despite being accepted into a facility and having DHS transportation scheduled twice. The circuit court revoked the improvement period for noncompliance and, at disposition, terminated his parental rights. On appeal, the father argued the circuit court erred by not allowing more time to address his substance use, asserting that “a drug problem cannot be resolved in six weeks.”

The Court affirmed, holding that the statutory “no reasonable likelihood” standard for termination is satisfied when an abusing parent fails to enter or follow through with appropriate, recommended substance abuse treatment, and that termination may proceed without less restrictive alternatives when necessary for the child’s welfare. The Court also declined to review the father’s separate challenge to the revocation of his improvement period due to briefing and record deficiencies under the Rules of Appellate Procedure.

Summary of the Opinion

The Court reviewed factual findings for clear error and legal conclusions de novo (Syl. Pt. 1, In re Cecil T.).
It affirmed termination under West Virginia Code § 49-4-604(c)(6), finding:
- No reasonable likelihood that the abusive/neglectful conditions could be substantially corrected, where the father continued drug use (admitting likely fentanyl positivity), failed to enter treatment despite acceptance and DHS-provided transport, missed drug screens, failed to appear for a psychological evaluation, and did not stay in contact with DHS.
- Termination was necessary for the welfare of the child, an infant with significant NAS whose permanency plan is adoption in the current placement.
The Court emphasized that the father was not asked to “cure” addiction within six weeks; rather, he was required to promptly engage in treatment and failed to take that basic step despite months passing since the petition was filed.
Relying on § 49-4-604(d)(1), the Court reiterated that “no reasonable likelihood” includes situations where a parent’s habitual drug use has seriously impaired parenting and the parent has not responded to or followed through with recommended and appropriate treatment.
Termination without less restrictive alternatives is permissible where the “no reasonable likelihood” standard is met (Syl. Pt. 5, In re Kristin Y., quoting In re R.J.M.).
The Court declined to address the father’s claim that his improvement period was prematurely terminated because his appendix failed to include the DHS motion, the hearing transcript, or the order—violating Rule 10(c)(7) and warranting disregard of inadequately supported assignments of error.
Oral argument was deemed unnecessary; the matter was resolved by memorandum decision under Rule 21.

Analysis

Precedents and Authorities Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 1): Establishes the standard of review in abuse and neglect appeals—factual findings for clear error and legal conclusions de novo. The Court applied this standard to uphold the circuit court’s findings of noncompliance and continued drug use.
West Virginia Code § 49-4-604(c)(6): Authorizes termination of parental rights upon a finding that there is no reasonable likelihood the conditions of abuse or neglect can be substantially corrected in the near future and termination is necessary for the welfare of the child. The Court relied on this as the dispositive termination standard.
West Virginia Code § 49-4-604(d)(1): Defines “no reasonable likelihood” to include circumstances where an abusing parent is habitually using or addicted to controlled substances to the extent parenting is seriously impaired, and the parent has not responded to or followed through with recommended, appropriate treatment that could improve parental functioning. The father’s failure to enroll in inpatient treatment—despite acceptance and DHS transport—squarely satisfied this statutory criterion.
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (Syl. Pt. 5), quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980): Reaffirms that termination may be ordered without employing less restrictive alternatives when “no reasonable likelihood” of correction exists. This allowed the circuit court to terminate without further incremental measures once noncompliance and continued use were shown.
West Virginia Rules of Appellate Procedure 10(c)(7): Requires pinpoint record citations and inclusion of relevant documents. The father’s failure to include the DHS motion, hearing transcript, and order terminating his improvement period justified the Court’s refusal to review that assignment of error.
West Virginia Rule of Appellate Procedure 21: Authorizes resolving an appeal by memorandum decision without oral argument where appropriate. The Court proceeded under Rule 21, indicating the appeal presented no new or unsettled legal issues.

Legal Reasoning

The Court’s reasoning proceeds along the statutory framework for termination and the factual record of noncompliance:

Statutory benchmarks: Termination requires two findings—(1) no reasonable likelihood of substantial correction of the abusive/neglectful conditions in the near future, and (2) necessity for the child’s welfare (W. Va. Code § 49-4-604(c)(6)). Section 49-4-604(d)(1) describes a specific scenario that meets the first prong: habitual drug use seriously impairing parenting, coupled with failure to respond to or follow through with recommended, appropriate treatment.
Application to facts:
- The father admitted likely fentanyl positivity and stipulated to the petition’s substance-related allegations, confirming the seriousness of his use.
- Despite the court’s clear directive to enter inpatient treatment within one week, the father did not enroll—even though he had been accepted into a facility and DHS twice arranged transportation. This failure to “take the basic step of submitting to treatment” is precisely the non-follow-through contemplated by § 49-4-604(d)(1).
- Other compliance failures—missing drug screens, a psychological evaluation, and DHS contact—corroborated an ongoing unwillingness or inability to engage with rehabilitative services.
“Six weeks” argument reframed: The Court rejected the notion that the law demanded a full cure of addiction within six weeks. Rather, the legal requirement was for the parent to promptly engage in the prescribed treatment process. The father’s failure to initiate treatment—over more than six months from the petition’s filing—defeated his argument for additional time.
Less restrictive alternatives not required: Under In re Kristin Y. and In re R.J.M., once “no reasonable likelihood” is established, the court may proceed directly to termination where necessary for the child’s welfare. Given the infant’s vulnerability and the father’s noncompliance, the circuit court permissibly chose termination over additional lesser measures.
Appellate preservation and record sufficiency: The Court declined to reach the challenge to the revocation of the improvement period due to noncompliance with Rule 10(c)(7). This reflects the Court’s consistent enforcement of briefing and appendix requirements—arguments unmoored from the record will not be adjudicated.

Impact

While issued as a memorandum decision, the Court’s reasoning has practical significance for abuse and neglect litigation involving parental substance use:

Prompt engagement over perfection: The decision underscores that courts evaluate whether a parent promptly initiates and follows through with appropriate treatment, not whether the parent has achieved complete sobriety within a compressed timeframe. Failure to take initial, reasonable steps—like entering an already-arranged inpatient program—strongly supports a “no reasonable likelihood” finding.
Service sufficiency and documentation: DHS’s provision of concrete services (acceptance into treatment, scheduled transport) was pivotal. Practitioners should meticulously document offered services and the parent’s response, as such records can decisively establish noncompliance under § 49-4-604(d)(1).
Infants and permanency: For infants—especially those experiencing NAS—the child-welfare necessity prong often favors expedited permanency where a parent does not engage in treatment. This decision reinforces that courts may move efficiently to termination when statutory criteria are satisfied.
Improvement periods are conditional: A granted improvement period is not an entitlement to unlimited time; it is conditioned on compliance. Noncompliance can lead to revocation and swift progression to disposition, as occurred here.
Appellate practice caution: The Court’s refusal to consider inadequately supported issues is a reminder that appellants must include all relevant motions, transcripts, and orders in the appendix and provide pinpoint citations. Defects risk forfeiture of arguments on appeal.

Complex Concepts Simplified

Neonatal Abstinence Syndrome (NAS): A group of problems occurring in a newborn exposed to addictive opiate drugs in the womb. Symptoms include tremors, irritability, feeding difficulties, and seizures. NAS can be severe and heightens a child’s need for stable, attentive caregiving from birth.
Adjudication vs. Disposition: In abuse/neglect cases, adjudication determines whether the child is abused or neglected and whether the parent is an abusing/neglecting parent. Disposition determines the remedy—ranging from improvement periods to termination of parental rights.
Improvement Period: A statutorily authorized period during which a parent receives services and must comply with a case plan to correct conditions. It is conditional and can be revoked for noncompliance. A “post-adjudicatory” improvement period occurs after adjudication but before disposition.
“No Reasonable Likelihood” Standard: A statutory determination that the parent cannot substantially correct the conditions of abuse or neglect in the near future. Under § 49-4-604(d)(1), habitual drug use impairing parenting plus failure to follow through with recommended treatment satisfies this standard.
Less Restrictive Alternatives: Measures short of termination (e.g., continued improvement periods, guardianships). Under Kristin Y./R.J.M., when “no reasonable likelihood” exists and termination is necessary for the child’s welfare, courts may terminate without pursuing lesser alternatives.
Standards of Review: On appeal, factual findings are reviewed for clear error (high deference to the trial court), while legal conclusions are reviewed de novo (no deference).
Memorandum Decision: A streamlined appellate disposition used when no new legal principle is announced and the case presents no novel issues. It carries persuasive value and applies existing law to the facts at hand.

Conclusion

In re S.H. reinforces a clear throughline in West Virginia child welfare jurisprudence: when an abusing parent with severe substance use fails to take the foundational step of entering court-ordered, appropriate treatment—especially after DHS has secured placement and transportation—the statutory “no reasonable likelihood” standard is met, permitting termination when necessary for the child’s welfare. The Court rejected the argument that more time was required by emphasizing that the legal focus is not on achieving sobriety within a set number of weeks, but on promptly and meaningfully engaging in the prescribed treatment regimen.

The decision also highlights two practice imperatives. First, DHS and guardians ad litem should ensure robust documentation of offered services and the parent’s response; those facts often prove dispositive. Second, appellants must rigorously comply with Rule 10(c)(7) by supplying complete records and pinpoint citations, or risk forfeiting appellate review of key issues.

Ultimately, the Court’s application of §§ 49-4-604(c)(6) and (d)(1), together with Kristin Y. and R.J.M., underscores the judiciary’s mandate to expedite permanency where parental noncompliance persists—particularly in cases involving medically fragile infants—while maintaining fidelity to procedural safeguards and appellate standards.