Persistent Nonparticipation Supports Denial of Further Delay and Termination Without Lesser Alternatives

1. Introduction

In In re L.L. and H.L., the Supreme Court of Appeals of West Virginia affirmed an order terminating a mother’s parental rights after she persistently failed to participate in drug screening, treatment, parenting services, and visitation. The central question was whether her last-minute willingness to enter inpatient treatment required the circuit court to postpone disposition or select an alternative preserving her parental rights.

The petitioner, Mother A.C., challenged the Circuit Court of Kanawha County’s October 28, 2025, termination order. The West Virginia Department of Human Services (“DHS”) opposed the appeal, and the children were represented by a guardian ad litem. The father’s parental rights were also terminated, but this appeal concerned the mother. The children’s permanency plan was adoption in a kinship placement.

The decision does not announce a new statutory test. Instead, it applies established principles governing continuances, improvement periods, credibility findings, and termination of parental rights. Its principal significance is that an unsupported promise of future participation need not overcome a documented history of nonparticipation when the statutory grounds for termination are established.

2. Background and Procedural History

Educational neglect and substance-abuse concerns

DHS filed its initial petition in May 2025, alleging educational neglect of both children. L.L. had twenty-five unexcused school absences, while H.L. had eighteen. The mother had previously pleaded guilty to one count of truancy in March 2024. DHS further alleged that seven-year-old L.L.’s academic development had been seriously affected: he could not count above ten and needed to repeat kindergarten.

The petition also alleged parental drug abuse, fraudulent use of food stamps to pay rent, and inadequate food for the children. These allegations must be distinguished from the grounds expressly established at adjudication: the circuit court ultimately found the mother to be an abusing and neglecting parent because of substance abuse and educational neglect.

After the preliminary hearing, the circuit court ordered random drug screening. An amended petition filed in June 2025 alleged positive results for amphetamine and methamphetamine and two missed screens. The adjudicatory hearing followed in July 2025.

Evidence at disposition

At the October 2025 dispositional hearing, a DHS case manager described extensive noncompliance:

• The mother completed only six of forty-eight required drug screens.
• Every completed screen was positive for illicit substances, including amphetamine and methamphetamine.
• She attended the parenting-services intake but no subsequent parenting-skills classes.
• She reportedly declined inpatient drug treatment.
• She did not participate in visitation with the children.

The mother acknowledged that she had “messed up” and should have begun changing her life earlier. She nevertheless claimed a month of sobriety and expressed willingness to enter any required treatment. At the close of the hearing, she requested a thirty-day continuance so that she could enter inpatient treatment before the court ruled.

The circuit court found no good cause for postponement. It characterized further delay as an “exercise in futility,” given the opportunities already offered and the mother’s failure to use them. It also found that her latest drug-test results contradicted her claimed month of sobriety.

The court concluded that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and that termination was necessary for the children’s welfare. It therefore terminated the mother’s parental rights.

3. Summary of the Opinion

The Supreme Court of Appeals affirmed the termination order without oral argument under West Virginia Rule of Appellate Procedure 21. All five listed justices concurred.

The Court resolved three related matters:

1. Continuance: Denying the requested thirty-day postponement was not an abuse of discretion. The mother’s late promise to enter treatment did not outweigh her sustained nonparticipation or the circuit court’s adverse credibility assessment.
2. Improvement period: The mother could not obtain relief on her assertion that she should have received an improvement period because the appellate record did not establish that she filed the required written motion.
3. Less restrictive disposition: The circuit court was not required to terminate only custodial rights before terminating parental rights. The record supported the finding that the conditions could not be substantially corrected in the near future, and the mother did not challenge the separate finding that termination was necessary for the children’s welfare.

4. Precedents Cited and Their Significance

In re K.S.: Different standards for different appellate questions

The Court relied on syllabus point 1 of In re K.S., -- W. Va. --, 930 S.E.2d 400 (2026), to identify the governing standards of review. Substantive rulings in abuse-and-neglect proceedings are reviewed for abuse of discretion, factual findings for clear error, and legal issues de novo.

This framework matters because an appeal does not involve a complete retrial. The appellate court independently addresses legal questions but gives substantial latitude to supported factual findings and discretionary case-management decisions. Those distinctions shaped its treatment of both the requested continuance and the termination order.

In re Mark M. and State v. Bush: Continuances are discretionary and fact-specific

Through syllabus points 3 and 4 of In re Mark M., 201 W. Va. 265, 496 S.E.2d 215 (1997), the Court applied continuance principles drawn from State v. Bush, 162 W. Va. 168, 255 S.E.2d 539 (1979). A continuance rests within the trial court’s sound discretion, and appellate intervention requires an abuse of that discretion.

The second principle is equally important: whether denial was improper depends on the circumstances of the particular case, especially the reasons presented when the request was denied. The inquiry therefore focused on what the mother actually offered at disposition—not on hypothetical future progress.

Her stated willingness to enter treatment was considered against her prior refusal of treatment, missed services, positive drug screens, and lack of visitation. These precedents did not require postponement merely because treatment might theoretically help; they permitted the circuit court to assess whether the particular request supplied a persuasive reason for delay.

Michael D.C. v. Wanda L.C.: Appellate restraint regarding credibility

The Court cited Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997), for the principle that a reviewing court cannot adequately assess witness credibility from a written record. The trial judge, who observes the witness directly, is uniquely positioned to make that assessment.

This precedent was especially consequential because the mother’s request depended on her testimony about recent sobriety and future willingness to participate. The circuit court found her sobriety claim inconsistent with recent drug-test results. The Supreme Court declined to second-guess that credibility determination rather than accepting her assurances as established facts.

State ex rel. P.G.-1 v. Wilson: A written improvement-period motion is required

Syllabus point 5 of State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021), provides that a circuit court may not grant an improvement period unless the respondent files a written motion requesting it.

The mother’s appellate argument referred to an improvement period, but she neither identified nor included such a written motion in the appellate record. The Court also invoked West Virginia Rule of Appellate Procedure 10(c)(7), which requires pinpoint citations showing when and how an issue was presented below.

This authority supplied an independent procedural reason to reject that aspect of the appeal. An oral request to postpone disposition is not interchangeable with the required written request for an improvement period. The Court therefore did not need to decide whether the mother otherwise would have qualified for one.

In re Kristin Y. and In re R.J.M.: Lesser alternatives need not precede termination

The Court relied on syllabus point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), quoting syllabus point 2 of In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). These authorities establish that termination of parental rights may occur without intervening less restrictive alternatives when there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected.

These precedents directly answered the mother’s contention that the circuit court should have terminated only her custodial rights. They reject a mandatory step-by-step progression through lesser dispositions. They do not, however, dispense with the statutory findings necessary for termination; the Court separately examined those findings here.

In re Katie S.: Visitation bears on the prospect of parental improvement

In In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996), the Court recognized that a parent’s demonstrated interest in visiting children outside the parent’s custody is a significant factor in assessing the potential to improve sufficiently to parent.

The mother’s failure to visit therefore had relevance beyond missed contact alone. It formed part of the evidence concerning her engagement and prospects for improvement. The opinion treated nonvisitation as one factor within a broader record, not as an automatic or independently sufficient ground for termination.

5. Legal Reasoning

A. Past conduct informed the assessment of promised future participation

The mother’s argument depended on a distinction between her earlier failures and her asserted readiness to change. The circuit court was entitled to evaluate that assertion in context. Her acknowledgment that she should have acted sooner confirmed the history of nonparticipation, while the drug-test evidence undermined her account of recent sobriety.

The Court did not hold that a late commitment to treatment is always legally irrelevant. Rather, it concluded that this particular commitment was insufficient to establish an abuse of discretion, given the contrary evidence and the circuit court’s credibility findings. The decision is therefore fact-specific, not a categorical prohibition on additional treatment opportunities.

B. A continuance and an improvement period are distinct requests

The opinion carefully separates postponing a hearing from granting a formal opportunity to demonstrate parental improvement. The mother’s continuance request received substantive review under the abuse-of-discretion standard. Her improvement-period argument failed because the necessary written motion was not shown in the record.

This distinction prevents an appellate argument from converting one procedural request into another. A request for additional time does not itself satisfy the filing requirement governing an improvement period.

C. Substance abuse was assessed through its effect on parenting and failure to engage in treatment

West Virginia Code § 49-4-604(d), as discussed in the opinion, recognizes an absence of reasonable likelihood of correction when habitual substance abuse or addiction seriously impairs parenting skills and the parent does not respond to or follow through with recommended, appropriate treatment capable of improving parental functioning.

The Court’s analysis was not based merely on the existence of drug use. It considered continued positive screens alongside refusal of treatment, minimal screening compliance, failure to attend parenting classes, and absence from visitation. Together, those circumstances supported the circuit court’s assessment that meaningful correction was not reasonably likely in the near future.

D. Termination required both a correction-related finding and a welfare finding

Under West Virginia Code § 49-4-604(c)(6), termination is authorized 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 child’s welfare.

The circuit court made both findings. The Supreme Court determined that the record supported the first and observed that the mother did not challenge the second. This matters because parental noncompliance alone was not presented as a substitute for the complete statutory inquiry.

Once those findings were established, the cited precedents permitted termination without first trying a disposition that removed custody while preserving parental rights. The availability of a nominally less restrictive option did not make that option legally mandatory.

6. Potential Impact

Documented participation will remain central

The decision illustrates the evidentiary importance of concrete records: completed and missed screens, test results, attendance at services, treatment decisions, and visitation. Such evidence can inform both whether additional time is justified and whether correction is reasonably likely.

Late assurances require contextual evaluation

Future courts may look to this opinion when a parent seeks delay based primarily on a newly expressed willingness to participate. Its reasoning supports evaluating those assurances against demonstrated conduct and credibility, rather than treating a promise as an entitlement to postponement.

Procedural compliance remains essential

For counsel, the improvement-period discussion underscores the need to file the required written motion and ensure that the appellate record identifies it. Merely arguing on appeal that more time should have been granted cannot cure the missing procedural foundation.

The holding should not be overstated

This memorandum decision applies established law to a particularly substantial record of nonparticipation. It does not establish a fixed number of missed screens that requires termination, a universal deadline for rehabilitation, or a rule that every late treatment request must fail. Nor does it eliminate the statutory requirement that termination be necessary for the children’s welfare.

Its broader contribution is to reaffirm that lesser alternatives and additional delay are not obligatory when supported findings establish that timely correction is not reasonably likely and termination is necessary.

7. Complex Concepts Simplified

Adjudication

The stage at which the court determines whether abuse or neglect has been established. Here, the adjudicated grounds were substance abuse and educational neglect.

Disposition

The stage at which the court decides the appropriate legal response after adjudication, including whether parental rights should be terminated.

Continuance and abeyance

A continuance postpones proceedings; holding a ruling in abeyance delays the decision. The mother sought thirty additional days before disposition was resolved.

Improvement period

A formal opportunity to demonstrate improvement in the conditions that led to the proceeding. Under the cited authority, a written motion is a prerequisite.

Abuse of discretion

A standard that gives the trial court latitude in making certain decisions. The appellate question is not simply whether another judge might have decided differently.

Clear error and de novo review

Clear-error review gives deference to factual findings; de novo review means the appellate court independently decides a legal question.

Termination of custodial rights versus parental rights

Removing custodial rights does not itself sever the entire legal parent-child relationship. Termination of parental rights is the more comprehensive disposition the mother sought to avoid.

No reasonable likelihood of substantial correction

A finding that meaningful correction is not reasonably likely within the relevant near-term period—not a declaration that personal change is impossible forever.

8. Conclusion

In re L.L. and H.L. affirms that a trial court may deny further delay when a parent’s last-minute treatment assurances are contradicted by sustained nonparticipation and adverse credibility findings. It also confirms that a written motion is indispensable to requesting an improvement period and that courts need not exhaust lesser dispositions before terminating parental rights when the statutory findings are satisfied.

The decision’s significance lies in its disciplined application of existing law: future promises must be evaluated against demonstrated conduct, procedural requirements must be observed, and the ultimate disposition must rest on both the prospects for timely correction and the children’s welfare.