Denial of an Improvement Period and Termination Where Parent Fails to Prove Likely Participation and Cannot Correct “Failure to Protect” (In re E.C.-1 and E.M.)

1. Introduction

In In re E.C.-1 and E.M., the Supreme Court of Appeals of West Virginia affirmed the Ohio County Circuit Court’s termination of a father’s parental rights after finding (1) he did not meet the statutory burden to obtain a post-adjudicatory improvement period and (2) the conditions of abuse and neglect—principally a recurring “failure to protect” by exposing children to unsafe, substance-abusing caretakers—could not be substantially corrected in the near future.

The petitioner father appealed the January 28, 2025 dispositional order, arguing the circuit court should have selected a less restrictive alternative to termination, such as an improvement period or a disposition under West Virginia Code § 49-4-604(c)(5). The Department of Human Services (“DHS”) opposed, and the children were represented by a guardian ad litem.

The case’s backdrop mattered: the father had already been through a prior abuse and neglect proceeding involving E.C.-1, where services were provided to address his tendency to expose the child to inappropriate people and conditions. Less than a year after that case was dismissed (May 2023), DHS filed a new petition (April 2024) alleging the father again exposed children to dangerous caretakers—this time his girlfriend, P.M., who was alleged to have physically abused another child and to have used fentanyl, leading to E.M. being born drug-affected.

2. Summary of the Opinion

The Court affirmed. It held the circuit court did not err in:

  • Denial of a post-adjudicatory improvement period because the father failed to demonstrate by clear and convincing evidence that he was likely to fully participate, given extreme noncompliance with drug screening, continued marijuana use, lack of visitation with E.M., and credibility concerns.
  • Termination without a less restrictive alternative because evidence supported findings that there was no reasonable likelihood the father could substantially correct the conditions of abuse and neglect in the near future and termination was necessary for the children’s welfare under West Virginia Code § 49-4-604(c)(6).

3. Analysis

3.1 Precedents Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)

The Court began with the governing appellate standard of review: factual findings are reviewed for clear error and legal conclusions de novo. This framework is decisive in abuse and neglect appeals because the circuit court’s first-hand evaluation of testimony and compliance often drives the disposition. Here, the father’s challenge largely attacked discretionary and fact-bound determinations (participation, credibility, and prognosis), which are difficult to overturn under clear-error review.

Michael D.C. v. Wanda L.C., 201 W. Va. 381, 497 S.E.2d 531 (1997)

The Court relied on this credibility principle to reject the father’s attempt to re-litigate the circuit court’s evaluation of his testimony. The circuit court found the father not credible, emphasizing he had previously lied to the court about continuing a relationship with E.C.-1’s mother to regain custody. That historical dishonesty undermined his new assurances that he would separate from P.M. if necessary. Under Michael D.C., the appellate court will not “second guess” such credibility determinations.

In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002)

This case supplied the key improvement-period principle: a circuit court has discretion to refuse an improvement period when no improvement is likely. The Court used In re Tonjia M. to validate the circuit court’s conclusion that the father’s conduct—especially willful refusal to screen and continued marijuana use—showed he was not prepared to engage meaningfully with rehabilitative services.

In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)

The father argued for less restrictive alternatives. In re Kristin Y. directly addresses that argument: termination may occur without intervening less restrictive alternatives when there is no reasonable likelihood the conditions can be substantially corrected and termination is necessary for the child’s welfare. The Court applied this rule to affirm termination where the father’s central problem—failure to protect—recurred despite prior services.

In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

The Court cited In re R.J.M. through the syllabus point quoted in In re Kristin Y., reinforcing a long-standing doctrinal baseline: once the statutory “no reasonable likelihood” and “necessary for welfare” findings are made, termination is permissible without lesser alternatives. This anchored the decision within a stable lineage of West Virginia abuse-and-neglect jurisprudence rather than any novel doctrinal shift.

3.2 Legal Reasoning

(A) Improvement period denial: failure to prove likely full participation

The controlling statute was West Virginia Code § 49-4-610(2)(B), which requires the parent to demonstrate by clear and convincing evidence that he is likely to fully participate in the improvement period. The Court emphasized the father’s willful noncompliance:

  • He was required to screen three times per week starting May 2024, yet completed only 7 out of 91 required screens by disposition.
  • Most completed screens were positive for marijuana.
  • He gave testimony reflecting defiance rather than commitment: “why would I, when you all are trying to take my child from me? What’s the point?”
  • He admitted he would stop using marijuana only if granted an improvement period—effectively conditioning compliance on receiving relief.
  • He attended visits with E.C.-1 but failed to participate in visits with E.M. and was absent at E.M.’s birth, supporting the circuit court’s concern about engagement and commitment across both children.

The circuit court also considered ongoing risk: despite being instructed to avoid relationships with substance-abusing individuals, the father remained with P.M. The Court treated this as part of the pattern showing impaired judgment and insufficient change from the earlier case. Given these facts, the Court held the father did not carry the statutory burden to show he was likely to fully participate.

(B) Termination and less restrictive alternatives: “no reasonable likelihood” and welfare necessity

The father sought a disposition under West Virginia Code § 49-4-604(c)(5), but the Court reiterated that circuit courts may terminate parental rights under West Virginia Code § 49-4-604(c)(6) without lesser alternatives upon the required findings.

Central to the “no reasonable likelihood” determination was West Virginia Code § 49-4-604(d)’s definition: it exists where the abusing adult has demonstrated an inadequate capacity to solve the problems of abuse or neglect “on [his] own or with help.” The Court’s logic was straightforward:

  • The father previously received services aimed at correcting the same core deficiency—exposing a child to unsafe individuals/conditions.
  • Those same conditions reappeared less than a year after the prior case was dismissed, indicating services had not produced durable change.
  • Continuing the relationship with P.M. (despite substance-abuse allegations and a drug-affected newborn) supported the conclusion that the father’s judgment remained impaired.
  • The circuit court found termination was necessary for the children’s welfare, and the father did not meaningfully challenge that welfare finding on appeal.

The Court thus affirmed termination as statutorily and precedentially supported.

(C) Procedural clarification: post-dispositional improvement period requires a written motion

In a footnote, the Court limited the scope of review: to the extent the father was arguing for a post-dispositional improvement period, West Virginia Code § 49-4-610(3)(A) required a written motion. Because he filed a written motion for a post-adjudicatory improvement period instead, the appellate review focused on the denial of that post-adjudicatory request.

3.3 Impact

  • Reinforces that “likely to fully participate” is an evidence-driven threshold. Mere assertions of willingness (employment, housing, attendance at meetings) will not overcome systematic refusal to screen, continued substance use, and inconsistent visitation—especially when the parent’s testimony is found not credible.
  • Strengthens the practical consequences of repeated “failure to protect.” Where the same protective deficit resurfaces after prior services, courts may treat recurrence as strong evidence of “no reasonable likelihood” of correction in the near future.
  • Affirms trial-court discretion and credibility primacy. The decision illustrates how credibility findings and patterns of behavior (including dishonesty in prior proceedings) can be outcome-determinative on appeal.
  • Clarifies litigation posture. Parents seeking post-dispositional improvement periods must comply with the written-motion requirement, or appellate review may be constrained.

4. Complex Concepts Simplified

  • Improvement period: A court-supervised window (with services like screening, parenting education, counseling) allowing a parent to correct conditions that led to an abuse/neglect adjudication. It is not automatic; the parent must qualify under the statute.
  • Post-adjudicatory improvement period: Requested after the court finds abuse/neglect occurred (adjudication) but before final disposition. The parent must prove he is likely to fully participate.
  • Clear and convincing evidence: A heightened proof standard—more than “more likely than not,” less than “beyond a reasonable doubt”—requiring a firm belief in the truth of the claim (here, likely full participation).
  • Less restrictive alternatives: Dispositions short of termination (e.g., custody/guardianship arrangements, continued improvement periods). West Virginia law allows courts to bypass these if statutory termination findings are met.
  • “No reasonable likelihood” of correction: A predictive, statute-defined determination that the parent lacks adequate capacity to solve the problems of abuse/neglect either alone or with help—often inferred from repeated failure despite services.
  • Adverse inference (mentioned by the circuit court): In some circumstances, a court may infer that a party’s refusal to testify would not help that party’s position. In this case, it was referenced in the context of assessing whether the father provided sufficient evidence of willingness to participate.
  • Stipulation at adjudication: An agreement to certain facts or legal conclusions—here, that the father failed to protect the children from others’ substance abuse and failed to properly supervise—streamlining the proceeding and narrowing the issues for disposition.

5. Conclusion

In re E.C.-1 and E.M. underscores a durable rule in West Virginia abuse-and-neglect law: a parent seeking an improvement period must prove likely full participation with concrete, credible evidence, and a circuit court may terminate parental rights—without lesser alternatives— once it finds both “no reasonable likelihood” of near-term correction and that termination is necessary for the child’s welfare. The opinion is particularly significant for “failure to protect” cases: when that precise deficiency recurs after prior services, it strongly supports a finding that the parent cannot or will not make sustainable protective choices in the timeframe the children need.