Nonparticipation and Refusal to Engage with DHS as Clear and Convincing Proof Supporting Termination Without Lesser Alternatives (In re M.F.)

1. Introduction

In re M.F. concerns the termination of a father’s parental, custodial, and guardianship rights in an abuse and neglect proceeding. The West Virginia Department of Human Services (“DHS”) alleged that S.F. (the father, initially treated as the child’s putative father) exposed the infant M.F. to domestic violence, abused controlled substances (methamphetamine and possibly heroin), refused drug screening and services, and failed to provide for the child’s basic needs.

Two procedural facts shaped the case: (1) the father failed to appear at the adjudicatory hearing even after a continuance was granted to give him another chance, and (2) he again failed to appear at disposition and did not maintain contact with counsel or DHS. The central issues on appeal were whether the evidence supported the “no reasonable likelihood” finding under West Virginia Code § 49-4-604 and whether the circuit court was required to adopt a less restrictive alternative to termination.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed the February 6, 2025, dispositional order terminating the father’s rights. Applying the abuse-and-neglect appellate standard of review, the Court held that the father’s failure to participate in proceedings, refusal to cooperate with DHS, and failure to follow through with services and drug screening constituted clear and convincing evidence that the conditions of abuse and neglect could not be substantially corrected in the near future.

The Court further held that, once the circuit court properly finds “no reasonable likelihood” under West Virginia Code § 49-4-604(c)(6), termination may be ordered without employing intervening less restrictive alternatives. The Court also declined to address an undeveloped visitation argument because it lacked supporting authority and analysis.

3. Analysis

3.1. Precedents Cited

A. Standard of review in abuse and neglect appeals — In re Cecil T.

The Court reaffirmed the governing appellate framework from Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): findings of fact are reviewed for clear error, while conclusions of law are reviewed de novo. This matters because the father’s challenge largely attacked the sufficiency and implications of the evidence (a fact-intensive inquiry), where deference to the circuit court is substantial unless the record leaves the appellate court with a definite and firm conviction that a mistake was made.

B. Termination without lesser alternatives upon “no reasonable likelihood” — In re Kristin Y. and In re R.J.M.

The father argued for a less restrictive disposition (e.g., termination of custodial rights only). The Court answered by invoking Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), which quotes Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980):

This precedent is pivotal because it transforms the father’s “less restrictive alternative” argument into a threshold question: if the circuit court’s “no reasonable likelihood” finding is supported, the court is not obligated to attempt lesser measures first. In this case, the Court concluded the threshold was satisfied.

C. Appellate waiver for undeveloped arguments — State v. Larry A.H. and State v. LaRock

The father briefly asserted that denying future visitation was unwarranted, but provided no controlling authority or substantive analysis. The Court declined review under State v. Larry A.H., 230 W. Va. 709, 716, 742 S.E.2d 125, 132 (2013) (quoting State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996)), which stands for the principle that issues mentioned only in passing without pertinent authority are not considered on appeal.

Although those are criminal cases, the Court used them here for a generally applicable appellate briefing rule: meaningful review requires developed argumentation.

3.2. Legal Reasoning

The Court’s reasoning proceeds in a structured statutory sequence under West Virginia Code § 49-4-604: first, whether there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future,” and second, whether termination is “necessary for the welfare of the child.” The Court emphasized that the record demonstrated:

• Repeated failure to appear at adjudication and disposition despite notice and a granted continuance;
• Lack of contact with DHS and with appointed counsel for months;
• No participation in offered services (parenting, domestic violence counseling, substance abuse treatment) and refusal to drug screen;
• Evidence of substance abuse and domestic violence exposure in the home.

The father attempted to explain his absence by claiming changed contact information and an incorrect hearing date relayed by another party. Even assuming these excuses, the Court found them insufficient because the father already had DHS and counsel contact information and did not proactively notify anyone of changes, request services, inquire about hearing dates, or seek information about the child. In the Court’s view, that pattern supported the circuit court’s findings under West Virginia Code § 49-4-604(d)(1) and (3): failure to follow through with recommended treatment and refusal to cooperate with a reasonable case plan.

Having affirmed the “no reasonable likelihood” finding, the Court then applied In re Kristin Y./In re R.J.M. to reject the claim that the circuit court was required to select a less restrictive disposition. Finally, the Court agreed with the lower court that the child’s welfare required permanency and stability, and that termination served those needs given the father’s ongoing nonparticipation.

3.3. Impact

While issued as a memorandum decision, In re M.F. is instructive in three recurring areas of West Virginia abuse-and-neglect practice:

• Nonappearance and disengagement as substantive evidence: The opinion treats persistent nonparticipation—failure to attend hearings, communicate with DHS/counsel, or engage in services—not merely as a procedural inconvenience but as probative evidence supporting the statutory “no reasonable likelihood” determination.
• Reinforcement of the “threshold” nature of the no-likelihood finding: Once a circuit court makes a supported finding under § 49-4-604(c)(6), this case reinforces that West Virginia law does not require incremental or lesser restrictions before termination.
• Briefing discipline on appeal: The Court’s reliance on State v. Larry A.H. and State v. LaRock underscores that abuse-and-neglect appeals are not exempt from ordinary appellate rules: undeveloped issues risk forfeiture.

4. Complex Concepts Simplified

• “No reasonable likelihood ... can be substantially corrected in the near future”: A statutory conclusion that the parent is unlikely to fix the problems that caused the case (e.g., substance abuse, violence, lack of care) soon enough to meet the child’s needs. Here, the father’s refusal to participate in services and case planning fit the statutory definitions in West Virginia Code § 49-4-604(d)(1) and (3).
• “Less restrictive alternatives”: Options short of terminating parental rights (such as improvement periods, custodial changes, or structured visitation). Under In re Kristin Y. and In re R.J.M., a court may bypass these when the “no reasonable likelihood” threshold is met.
• “Clear error” review: On appeal, factual findings stand unless the appellate court is firmly convinced a mistake occurred. This deference is especially consequential in abuse-and-neglect cases where circuit courts assess credibility, patterns of conduct, and compliance.
• Waiver/forfeiture for inadequate briefing: If a party asserts an issue without analysis or supporting authority, an appellate court may refuse to decide it, as reflected by the Court’s citation to State v. Larry A.H. and State v. LaRock.

5. Conclusion

In re M.F. reaffirms a practical but consequential rule in West Virginia abuse-and-neglect jurisprudence: when a parent repeatedly fails to appear, refuses to communicate, and declines offered rehabilitative services, those choices can supply clear and convincing evidence supporting a “no reasonable likelihood” finding under West Virginia Code § 49-4-604, thereby permitting termination of parental rights without first attempting less restrictive alternatives. The decision also serves as a caution to appellate litigants that issues raised without developed argument and authority may not be reviewed.