In re J.M.: No Improvement Period—and Termination Upheld—When Ongoing Drug Use, No Visitation, and Incarceration Make Timely Correction Unlikely

1. Introduction

Case: In re J.M., No. 25-595 (W. Va. July 28, 2026) (memorandum decision).
Court: Supreme Court of Appeals of West Virginia.
Parties: Petitioner Mother J.C. (appellant), West Virginia Department of Human Services (“DHS”), and the child J.M. (represented by a guardian ad litem).

The case arose from an abuse-and-neglect petition filed shortly after J.M.’s birth in November 2024. DHS alleged neonatal exposure to opioids (with withdrawal symptoms), mother’s positive drug test (including fentanyl) at the hospital, continued use of marijuana she believed may have been laced, apparent impairment during a hospital visit, unstable housing/employment, and—critically—prior involuntary terminations of mother’s parental rights to two other children in 2018.

The appeal presented two recurring issues in West Virginia child welfare law: (1) whether the circuit court erred in denying a post-adjudicatory improvement period; and (2) whether the circuit court erred at disposition by terminating parental rights rather than selecting a less restrictive alternative, especially where the father’s plan was reunification.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed the August 11, 2025 dispositional order terminating mother’s parental rights. The Court held:

  • The circuit court did not abuse its discretion in denying a post-adjudicatory improvement period because mother failed to demonstrate, by clear and convincing evidence, that she was likely to fully participate—particularly given ongoing drug use, repeated positive screens/refusal to screen, lack of visitation, prior terminations, and prior treatment efforts that had not resulted in sustained sobriety.
  • The circuit court did not abuse its discretion in terminating parental rights without less restrictive alternatives because the record supported the statutory finding of “no reasonable likelihood” the conditions of abuse/neglect could be substantially corrected in the near future and that termination was necessary for the child’s welfare.
  • The fact that J.M.’s permanency plan was reunification with the father did not entitle the mother to retain parental rights where her own conduct endangered the child and conditions were not expected to improve.

3. Analysis

3.1 Precedents Cited

Syl. Pt. 1, In re K.S., -- W. Va. --, 930 S.E.2d 400 (2026)

The Court began by grounding its review standards: circuit court dispositional rulings are reviewed for abuse of discretion, factual findings for clear error, and legal issues de novo. This framing was outcome-shaping because mother’s arguments largely asked the Supreme Court to reweigh evidence (drug screens, visitation history, treatment history), which appellate courts generally do not do absent clear error.

In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002)

Cited for the proposition that a circuit court has discretion to deny an improvement period when “no improvement is likely.” The Court used In re Tonjia M. to emphasize that an improvement period is not automatic upon request or partial participation in services; it is a predictive, evidence-based determination about likely compliance and benefit.

In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996)

The Court relied on In re Katie S. for a practical evaluative factor: “the level of interest demonstrated by a parent in visiting his or her children” is significant to assessing potential improvement and ability to reach minimal parenting standards. In this case, mother’s inability to secure visitation—because she did not produce three clean screens and refused an immediate screen—supported the circuit court’s conclusion that her trajectory did not warrant an improvement period.

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980))

These authorities supplied the “least restrictive alternative” rule as applied in West Virginia abuse-and-neglect dispositions: termination may be ordered “without the use of intervening less restrictive alternatives” when there is “no reasonable likelihood” that conditions can be substantially corrected. The Court applied this rule to reject mother’s argument that termination was too harsh, focusing instead on whether the statutory “no reasonable likelihood” finding was supported.

In re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000)

In re Emily addressed a common misconception: a non-offending or fit parent’s availability does not “automatically entitle” the other parent to retain rights when that parent’s conduct endangered the child and is not expected to improve. The Court used this precedent to dispose of mother’s reliance on the father’s reunification plan as a basis to avoid termination.

In re H.B., 252 W. Va. 350, 361 n.18, 922 S.E.2d 350, 361 n.18 (2025)

The Court reinforced an important statutory boundary: a disposition under West Virginia Code § 49-4-604(c)(5) “specifically does not encompass when a child is with a non-offending parent—only when a child is temporarily placed with a guardian or the DHS.” This citation directly undercut mother’s request for an alternative disposition premised on the child being reunified with the father.

3.2 Legal Reasoning

A. Denial of a post-adjudicatory improvement period (W. Va. Code § 49-4-610(2)(B))

Under West Virginia Code § 49-4-610(2)(B), the parent bears the burden to show—by clear and convincing evidence—that she is likely to fully participate in an improvement period. The Court treated the circuit court’s denial as a discretionary, forward-looking judgment tied to demonstrated behavior during the case, not aspirational plans.

The Court found the denial supported by multiple, mutually reinforcing facts:

  • Ongoing substance use after services: mother admitted to marijuana use after a two-week detoxification program and continued to test positive.
  • Failure/refusal to screen: her refusal to drug screen immediately after the preliminary hearing delayed or prevented early visitation.
  • No contact/visitation with the infant: because she did not produce clean screens, she had no visits with J.M. before incarceration—an evidentiary marker of limited ability to meet basic case requirements.
  • Prior involuntary terminations: the circuit court took judicial notice of the 2018 terminations, and the Supreme Court treated those as probative of chronic, unremedied conditions (particularly substance abuse).
  • Prior treatment history without durable change: mother’s earlier detox attempts and treatment received during a 2017–2021 incarceration did not yield sustained sobriety.
  • Incarceration timing and permanency delay: mother’s anticipated release was uncertain and depended on compliance/behavior; waiting would “unreasonably delay” permanency for a newborn.

Taken together, the Court concluded mother’s evidence (recent program participation, communications with father) did not satisfy the statutory burden that she was likely to “fully participate,” and thus there was no abuse of discretion in denying an improvement period.

B. Termination and the “least restrictive alternative” argument (W. Va. Code § 49-4-604(c)(6))

The Supreme Court applied the established rule (via In re Kristin Y. and In re R.J.M.) that termination may occur without intermediate alternatives when the statutory findings are met. Here, the dispositive statutory findings were: (1) no reasonable likelihood the conditions of neglect or abuse can be substantially corrected “in the near future”; and (2) termination is necessary for the welfare of the child.

The Court emphasized the harm and risk demonstrated by the record: J.M. was born with opioids in his system and experienced withdrawal, and mother continued substance use even after detox and during the proceedings. The Court also rejected mother’s reliance on West Virginia Code § 49-4-604(c)(5), both because the cited jurisprudence limits that provision’s applicability (In re H.B.) and because a fit father does not immunize the other parent from termination where that parent remains a danger and is unlikely to improve (In re Emily).

3.3 Impact

Although issued as a memorandum decision, In re J.M. is significant for its consolidation of several practical lessons that will likely influence circuit-court practice:

  • Improvement periods remain evidence-driven, not program-driven: enrollment in treatment—especially while incarcerated—does not substitute for a showing of likely full participation and benefit, particularly where recent conduct in the case includes positive screens, refusal to screen, and no visitation.
  • Visitation-linked compliance is a key metric: inability to progress to visits because of ongoing drug use can be treated as evidence of low improvement potential (consistent with In re Katie S.).
  • Incarceration and permanency timelines matter: when release is uncertain and the child is very young, courts may treat waiting as an unreasonable delay of permanency, supporting both denial of improvement periods and termination.
  • Non-offending parent reunification does not shield the offending parent: the Court reaffirmed that termination can be appropriate notwithstanding the other parent’s fitness (In re Emily), and it narrowed misuses of § 49-4-604(c)(5) by reiterating the limitation noted in In re H.B..

4. Complex Concepts Simplified

  • Adjudication / adjudicatory hearing: the stage where the court decides whether abuse or neglect occurred. Here, mother stipulated to substance abuse, and the court adjudicated her as an abusing/neglecting parent.
  • Disposition / dispositional hearing: the stage where the court decides the remedy—services, improvement period, custody arrangements, guardianship, or termination.
  • Post-adjudicatory improvement period: a court-ordered opportunity, after adjudication, for the parent to complete specific requirements (treatment, screens, parenting, etc.). It is granted only if the parent proves she is likely to fully participate.
  • Clear and convincing evidence: a heightened proof standard—more than “more likely than not”—requiring strong, persuasive evidence.
  • “No reasonable likelihood” of correction: a statutory conclusion that the parent will not be able to fix the problems (e.g., addiction, unsafe behavior) within a timeframe that meets the child’s needs for safety and permanency.
  • Least restrictive alternative: the idea that courts should not choose termination if a safer, less drastic option will protect the child. West Virginia law permits bypassing lesser alternatives when the “no reasonable likelihood” finding is made.
  • Permanency plan / concurrent plan: the primary long-term goal (here, reunification with father) plus a backup plan (here, adoption in the current placement) in case the primary plan fails.
  • Judicial notice: a court’s recognition of certain facts/records without requiring proof at the hearing; here, the circuit court recognized mother’s prior involuntary terminations.

5. Conclusion

In re J.M. affirms a straightforward but consequential principle in West Virginia abuse-and-neglect law: a parent seeking a post-adjudicatory improvement period must demonstrate real, case-specific indicators of likely full participation, and courts may deny that relief—and proceed to termination—where ongoing substance use, refusal/failed screening, absence of visitation, prior unsuccessful treatment history, and incarceration-related uncertainty make timely correction unlikely and permanency delay unreasonable. The decision also reinforces that reunification with a fit parent does not preserve the other parent’s rights when that parent remains a danger and is not expected to improve, and it reiterates limits on reliance upon West Virginia Code § 49-4-604(c)(5) when the child is with a non-offending parent.