No Reasonable Likelihood, No Less Restrictive Alternative: Affirming Termination of Parental Rights under WV Code §49-4-604(c)(6)

Introduction

This commentary examines the Supreme Court of West Virginia’s decision in In re R.V., H.E.-1, H.E.-2, and S.V. (No. 24-37, May 6, 2025), in which the court affirmed a Randolph County circuit court’s order terminating a mother’s parental rights. The Department of Human Services (“DHS”) filed abuse and neglect petitions against R.E. alleging methamphetamine use during pregnancy, failure to comply with an in-home safety plan, chronic truancy by one child, and persistent non-participation in services. The key issue on appeal was whether a less restrictive alternative to termination—such as an improvement period—should have been ordered, or whether statutory authorization to terminate parental rights without intermediaries applied because there was “no reasonable likelihood” the mother’s conditions could be corrected. Petitioner R.E. challenged the dispositional order, arguing her longstanding bond with two of the children warranted a less drastic remedy.

Summary of the Judgment

After an adjudicatory hearing in August 2023 where R.E. admitted to substance abuse that impaired her parenting, the circuit court found her an abusing and neglecting parent. At the November 2023 dispositional hearing the court heard evidence that:

• R.E. tested positive for methamphetamine twice, missed 64 “call-to-test” drug screens, and denied having a substance-abuse problem;
• She failed to maintain any meaningful communication with DHS or appear for hearings and services;
• She had not visited her children since April 2023 despite an in-home safety plan and multidisciplinary team meetings;
• She declined to participate in Family Treatment Court after completing only an assessment.

The circuit court denied a post-adjudicatory improvement period, found no reasonable likelihood the conditions of abuse and neglect could be corrected, and concluded that termination was necessary for the welfare of the children under West Virginia Code §49-4-604(c)(6). On appeal, the Supreme Court of Appeals reviewed factual findings for clear error and legal conclusions de novo. It held that the record—replete with evidence of persistent drug use, non-compliance, and denial of need for treatment—supported termination without less restrictive alternatives and affirmed the order.

Analysis

Precedents Cited

The court relied heavily on established West Virginia precedent:

• In re Kristin Y. (227 W. Va. 558, 712 S.E.2d 55 (2011)): Termination is permissible “without the use of intervening less restrictive alternatives” when there is no reasonable likelihood conditions can be corrected.
• In re R.J.M. (164 W. Va. 496, 266 S.E.2d 114 (1980)): Recognized the statutory hierarchy of dispositions under W. Va. Code §49-4-604 and affirmed termination when corrective conditions are unlikely.
• In re Cecil T. (228 W. Va. 89, 717 S.E.2d 873 (2011)): Established the standard of review for abuse and neglect cases—factual findings reviewed for clear error, legal conclusions de novo.

These precedents collectively underscore that once a parent fails to engage with treatment, visits, and services, and there is evidence of continuing substance abuse, the most protective remedy—termination of parental rights—may be imposed immediately.

Legal Reasoning

Applying W. Va. Code §49-4-604, the court proceeded through the statutory dispositional sequence and reached subsection (c)(6), which permits termination where “there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child.” The circuit court’s findings—which the Supreme Court affirmed—demonstrated:

• Serious impairment of parenting skills due to addiction (W. Va. Code §49-4-604(d)(1)).
• Failure to follow through on recommended treatment (W. Va. Code §49-4-604(d)(3)).

Given R.E.’s sporadic drug‐screen compliance, positive methamphetamine tests, denial of a substance use disorder, refusal to visit the children, and non‐engagement with DHS, the court found no basis for a less restrictive alternative. The remedy of termination was thus “necessary for the welfare of the children,” a statutory requirement under subsection (c)(6).

Impact

This decision reinforces West Virginia’s commitment to child welfare over parental preference where parents demonstrate chronic, unresolved substance abuse and non‐participation in essential services. It clarifies that:

• Circuit courts may bypass improvement periods when evidence shows a parent will not meaningfully engage in treatment or visitation.
• Termination is neither arbitrary nor excessive but follows a reasoned application of W. Va. Code §49-4-604’s statutory hierarchy.
• Future litigants will face a high bar to challenge termination orders if they cannot identify specific clear errors in the trial court’s findings of no reasonable likelihood of correction.

Complex Concepts Simplified

• Abuse and Neglect Petition: A court filing by DHS alleging a parent’s conduct places a child at risk of harm or fails to meet basic needs.
• Post-Adjudicatory Improvement Period: A court-ordered timeframe for a parent to complete services and demonstrate changed behavior before a final dispositional order.
• In-Home Safety Plan: A DHS-supervised agreement setting out required services and behaviors to keep children safely with the parent.
• Call-to-Test Program: A random drug screening protocol requiring daily phone confirmation of testing obligations.
• Family Treatment Court (FTC): A specialized docket offering intensive substance abuse treatment while parents retain legal custody under supervision.
• No Reasonable Likelihood Standard: A statutory finding that the parent’s conditions of abuse or neglect cannot be remedied imminently, permitting termination without intermediate steps.

Conclusion

The Supreme Court of Appeals’ memorandum decision in In re R.V., H.E.-1, H.E.-2, and S.V. cements the principle that, under West Virginia law, termination of parental rights is the appropriate remedy when a parent’s chronic substance abuse and refusal to engage in court-ordered services demonstrate no reasonable prospect of correction. By applying W. Va. Code §49-4-604(c)(6) and controlling precedents, the court ensured the children’s welfare remained paramount and provided a clear roadmap for future abuse and neglect proceedings where parental non-compliance is entrenched.