Nonparticipation in Reunification Services as Grounds for Direct Termination of Parental Rights: Commentary on In re T.W. and J.M.-1

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re T.W. and J.M.-1, No. 24-741 (Nov. 25, 2025), affirms the termination of a mother’s parental rights based primarily on her sustained failure to engage in reunification services, despite having completed an inpatient substance abuse treatment program. The decision underscores the statutory principle that when an abusing parent does not respond to or follow through with a reasonable family case plan, a circuit court may find “no reasonable likelihood” that the conditions of neglect can be substantially corrected; once that finding is made, termination of parental rights may be ordered without resort to less restrictive alternatives.

The case arises from an abuse and neglect petition filed by the West Virginia Department of Human Services (“DHS”), alleging that the petitioner mother, J.M.-2, abused controlled substances in the presence of her children, T.W. and J.M.-1, to the extent that her parenting ability was impaired. After stipulating to the allegations and being adjudicated as a neglectful parent, the mother was granted a post-adjudicatory improvement period with access to a variety of services. Over the next sixteen months, however, she failed to meaningfully engage with those services and did not drug screen, which in turn barred her from visiting the children.

On appeal, the mother challenged two core conclusions of the circuit court:

That there was no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future; and
That the court erred in not employing a less restrictive dispositional alternative, such as terminating only her custodial rights rather than her full parental rights.

The Supreme Court rejected both arguments, relying on West Virginia Code § 49-4-604 and prior precedent, including In re Katie S., In re Kristin Y., and In re R.J.M., and affirmed the termination of parental rights.

II. Summary of the Opinion

The Court issued a memorandum decision, without oral argument, affirming the Wood County Circuit Court’s November 13, 2024 order terminating the petitioner mother’s parental rights to T.W. and J.M.-1. Applying a clear-error standard to factual findings and de novo review to questions of law (per In re Cecil T.), the Court held:

The record contained sufficient evidence to support the circuit court’s finding that the mother failed to participate in any of the reasonable rehabilitative services offered under the family case plan, justifying a statutory finding that there was “no reasonable likelihood” that the conditions of neglect could be substantially corrected in the near future under West Virginia Code § 49-4-604(d)(3).
The mother’s failure to drug screen for sixteen months—preventing any visitation—was a strong indicator of her lack of parental interest and potential for improvement, consistent with the reasoning in In re Katie S.
Because the statutory “no reasonable likelihood” threshold was satisfied, the circuit court was permitted to terminate parental rights without employing less restrictive alternatives, under In re Kristin Y. and In re R.J.M., and under West Virginia Code § 49-4-604(c)(6).
Given the children’s need for permanency and the permanency plan of adoption in their current placement, terminating only custodial rights would have jeopardized the children’s welfare and permanence.

Accordingly, the Supreme Court found no error and affirmed the termination of the petitioner’s parental rights.

III. Detailed Analysis

A. Factual and Procedural Background

In April 2023, DHS filed an abuse and neglect petition alleging that the petitioner mother, residing with her children at her own mother’s (the maternal grandmother’s) house, was abusing controlled substances in the presence of the children to the extent that her parenting ability was impaired. The petition also involved additional children and adult respondents not at issue on appeal.

At a May 2023 adjudicatory hearing, the mother stipulated to the substance abuse allegations. Based on this stipulation, the circuit court adjudicated her as a neglectful parent due to her substance abuse. The court then:

Granted her a post-adjudicatory improvement period, with terms to be finalized in an agreed order; and
Allowed her to begin supervised visitation with the children, conditioned on participation in drug screening.

In the months that followed, the court held several review hearings regarding the improvement period. Repeated continuances were granted to allow the mother time to approve the terms and conditions of her improvement period, but she did not do so. At a final review hearing in June 2024, the court admitted—without objection—a DHS report that included:

The written case plan outlining offered services, including parenting and life skills classes, drug screening, supervised visitation, and individualized counseling; and
Documentation that the mother had not contacted the caseworker or service providers, had not begun any services, and had not agreed to the terms of the proposed improvement period.

At the first dispositional hearing in August 2024, DHS sought termination of the mother’s parental rights. A DHS caseworker testified that:

The mother had not participated in any offered services from the outset of the case;
The worker could not contact the mother outside of multidisciplinary team (MDT) meetings despite repeated efforts; and
The mother had completed an inpatient drug treatment program (October 31 to December 2, 2023), but did not engage in DHS services following her discharge.

The mother testified that she was drug free after inpatient treatment and asserted that she had tried to contact the DHS caseworker by text but then lost phone service. She claimed that she failed to participate in services after an April 2024 hearing because she lacked necessary paperwork and a valid identification card. She expressed willingness to engage in services going forward and asked the court not to terminate her parental rights, stating that she wanted the children to remain in their current placement while she “got [herself] together.”

The circuit court continued the dispositional hearing and directed DHS to assist the mother in obtaining an identification card so she could engage in services. At the second dispositional hearing in September 2024, however, the mother did not appear, though she was represented by counsel. DHS introduced a new report, again without objection, stating that the mother had not contacted the caseworker following the prior hearing. DHS renewed its motion for termination of parental rights.

Mother’s counsel opposed full termination and requested that the court terminate only the mother’s custodial rights, leaving residual parental rights intact and allowing for the possibility of future modification.

After reviewing the record, the circuit court found that the mother had “failed to participate in any of the services offered” despite multiple opportunities and additional time after the August hearing. The court determined that:

There was no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future; and
Given the children’s need for permanency, termination of the mother’s parental rights was necessary for their welfare.

The court terminated the mother’s parental rights in November 2024. T.W.’s father’s parental rights had also been terminated, and J.M.-1’s father had voluntarily relinquished his parental rights. The permanency plan is adoption in the children’s current placement.

B. Issues on Appeal

The petitioner mother raised two principal issues:

No reasonable likelihood finding – She contended that the circuit court erred in finding no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future, arguing that her completion of inpatient drug treatment showed a capacity to remedy the issues.
Failure to consider less restrictive alternatives – She argued that the court should have considered less restrictive dispositional alternatives, especially termination of custodial rights only, leaving open the possibility of modification at a later time.

C. Standard of Review

The Court invoked the standard from Syllabus Point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011):

Findings of fact in abuse and neglect proceedings are reviewed under a clearly erroneous standard.
Conclusions of law are reviewed de novo.

This bifurcated standard is important: the Supreme Court does not reweigh evidence or second-guess credibility determinations made by the circuit court; it instead examines whether those factual findings are supported by the record. Statutory interpretation and the application of legal standards (such as what qualifies as “no reasonable likelihood” under § 49-4-604) are matters for independent appellate review.

D. Precedents and Authorities Cited

1. In re Cecil T. – Standard of Review

Cecil T. is cited solely for the standard of review. The Court reiterates that in abuse and neglect cases, factual determinations—such as the extent of a parent’s compliance with services—are entitled to deference unless clearly erroneous. The mother’s appeal did not demonstrate that the circuit court’s findings about her nonparticipation were clearly wrong in light of the record.

2. In re Katie S. – Significance of Visitation Efforts

The Court quotes footnote 14 of In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996), noting that:

“the level of interest demonstrated by a parent in visiting his or her children while they are out of the parent's custody is a significant factor in determining the parent's potential to improve sufficiently and achieve minimum standards to parent the child.”

This citation emphasizes that a parent’s efforts—or lack thereof—to maintain contact with their children during the pendency of the case are highly probative of:

Their commitment to reunification, and
The likelihood they will improve to meet minimum parenting standards.

Here, the mother’s failure to drug screen prevented her from visiting the children for sixteen months. The Court uses Katie S. to frame that lack of contact as powerful evidence against her capacity to remedy the neglect.

3. In re Kristin Y. and In re R.J.M. – Termination Without Lesser Alternatives

The Court relies heavily on the line of cases beginning with In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980), as reaffirmed in In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). The relevant rule, quoted in the opinion, is:

Termination of parental rights “may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under [West Virginia Code § 49-4-604(c)(6)] that conditions of neglect ... can be substantially corrected.”

This precedent answers the petitioner’s argument that the circuit court was obliged to first consider a lesser measure, such as terminating only custodial rights. Once the statutory findings under § 49-4-604(c)(6) and (d) are satisfied, the court is not required to proceed through a hierarchy of less restrictive dispositions; it may go directly to termination when necessary for the child’s welfare.

4. Statutory Framework: West Virginia Code § 49-4-604

The decision centers on West Virginia Code § 49-4-604, which governs dispositional alternatives in abuse and neglect cases.

Key provisions discussed or applied include:

§ 49-4-604(d) – Definition of “no reasonable likelihood”
The statute provides that “no reasonable likelihood that conditions of neglect ... can be substantially corrected” means that, based on the evidence, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help.
§ 49-4-604(d)(3) – Failure to follow through with a case plan
A circuit court may find no reasonable likelihood where “[t]he abusing parent ... [has] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts.”
§ 49-4-604(c)(6) – Termination of parental rights
This subsection authorizes termination “[u]pon a finding that there is no reasonable likelihood that the conditions of neglect ... can be substantially corrected in the near future and, when necessary for the welfare of the child.”

The Court’s analysis is a textbook application of this statutory framework: it first affirms the “no reasonable likelihood” finding under § 49-4-604(d)(3), then confirms that the children’s need for permanency and welfare justified termination under § 49-4-604(c)(6).

E. The Court’s Legal Reasoning

1. Finding of “No Reasonable Likelihood” of Correction

The mother argued that her completion of an inpatient drug rehabilitation program from October 31 to December 2, 2023, demonstrated her ability to remedy the neglect. The Court acknowledged her completion of treatment but emphasized:

She never contacted DHS to begin services under the family case plan; and
She never agreed to the terms of the proposed improvement period, despite repeated continuances.

The DHS reports—admitted without objection—showed that:

Services offered included parenting and life skills classes, drug screening, supervised visitation, and individualized counseling;
The mother had not initiated contact with the caseworker or any provider to start these services; and
She did not participate in services at any point, including after inpatient treatment.

Additionally, because she failed to drug screen, she could not exercise supervised visitation with her children for sixteen months. Under Katie S., the Court treats the failure to exercise visitation as a strong indicator of limited potential for improvement.

On this record, the Court concluded that the statutory condition in § 49-4-604(d)(3)—noncompliance with a reasonable family case plan or other rehabilitative efforts—was satisfied. In other words:

The mother’s isolated success (inpatient treatment) did not outweigh her broader and sustained failure to engage in the structured reunification process set forth by DHS and the court.
Her excuses (loss of cell phone service, lack of identification, missing paperwork) did not undercut the circuit court’s factual finding that she had multiple opportunities and avenues (including through counsel and the court process itself) to act, but did not do so.

Because these findings were supported by the evidence and not clearly erroneous, the Supreme Court held that the circuit court properly found no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future.

2. The Role of Inpatient Treatment in the Analysis

A critical nuance in the opinion is how the Court treats the mother’s inpatient rehabilitation. The Court does not disregard this step; DHS’s witness acknowledged the completion of treatment, and the opinion recites it. Nonetheless, the Court effectively holds:

Completion of inpatient treatment, standing alone, is insufficient to demonstrate a reasonable likelihood of correcting neglect when the parent then fails to engage in the case plan or follow-through services.
The legal standard focuses on the parent’s demonstrated capacity to solve the problems of neglect “on their own or with help” over time, not on a single intervention in isolation.

Thus, this decision reinforces that improvement must be sustained, documented, and integrated into the larger family case plan if it is to weigh meaningfully against termination.

3. Emphasis on Visitation and Drug Screening

The Court highlights that the mother’s failure to drug screen prevented visitation for sixteen months. This is significant because:

Drug screening was a precondition to supervised visitation, intended to ensure child safety.
Visitation is a primary mechanism for maintaining the parent-child bond while the case is pending.

By invoking Katie S., the Court reiterates that:

A parent’s efforts to see their children while they are out of custody are a “significant factor” in evaluating their potential to improve.
Where a parent fails to take the necessary steps—such as submitting to drug screens—to even qualify for visitation, courts may infer a lack of commitment or capacity to meet basic parental standards.

Thus, the mother’s prolonged lack of contact with the children, rooted in her noncompliance with drug screening, counted heavily against her in both the circuit court and on appeal.

4. Refusal to Employ Less Restrictive Alternatives

The mother, through counsel, sought termination of custodial rights only, which would have left some residual parental rights and the potential for later modification. The Court, however, reaffirmed the rule from Kristin Y. and R.J.M.:

When the statutory standard is met—that there is no reasonable likelihood that conditions of neglect can be substantially corrected in the near future—termination of parental rights “may be employed without the use of intervening less restrictive alternatives.”

The Court added a second layer of analysis by emphasizing the children’s need for permanency. It held that the record supported the circuit court’s finding that:

The children required permanency; and
Termination of the mother’s parental rights was necessary to secure that permanency.

The Court expressly stated that termination of custodial rights only would have jeopardized permanency. Given that parental rights of both fathers had already been extinguished or relinquished and that the permanency plan is adoption in the current placement, leaving the mother’s residual rights intact would have:

Prolonged legal uncertainty for the children; and
Potentially obstructed or complicated adoption, contrary to statutory goals of timely permanency.

In this way, the decision reinforces that when the statutory threshold for termination is met and permanency requires a clean legal break, courts are not obligated to settle for lesser measures such as merely terminating custody.

F. Simplifying Key Legal Concepts

1. Abuse and Neglect Proceedings

An abuse and neglect proceeding is a civil case in which the State (here, DHS) alleges that a child is abused or neglected and seeks court orders to protect the child. The case typically involves:

Emergency protective measures (such as removal from the home);
An adjudicatory hearing (to decide whether abuse or neglect occurred); and
A dispositional hearing (to decide what happens long-term: reunification efforts, guardianship, termination of rights, etc.).

2. Adjudicatory vs. Dispositional Hearings

Adjudicatory hearing: The court determines whether the allegations of abuse or neglect are true. Here, the mother stipulated (admitted) to the allegations, leading to a finding of neglect.
Dispositional hearing: The court decides what orders are necessary to protect the child’s welfare, including whether to terminate parental rights or implement less drastic measures.

3. Improvement Period

An “improvement period” is a court-approved timeframe during which the abusing or neglecting parent is given the opportunity—and support—to correct the problems that led to the case. It is not automatic; it is a privilege conditioned on the parent’s active participation. Failure to comply with the terms of an improvement period can lead the court to conclude that further efforts will not be effective.

4. Family Case Plan and Services

The “family case plan” is a written, structured plan developed by DHS (often with input from the parent and service providers) that:

Identifies the problems (e.g., substance abuse, lack of parenting skills); and
Lists specific services and steps the parent must take to address those issues (e.g., treatment, counseling, parenting classes, drug screens, visitation).

Under § 49-4-604(d)(3), a parent’s failure to respond to or follow through with a reasonable case plan can be the basis for a finding that there is no reasonable likelihood of correcting the conditions of neglect.

5. “No Reasonable Likelihood” the Conditions Can Be Corrected

This statutory phrase does not mean that change is absolutely impossible. Instead, it means that:

Based on the evidence, the court concludes that the parent has shown an inadequate capacity to solve the problems—either on their own or even with professional help—within a timeframe consistent with the child’s needs.

In this case, ongoing nonparticipation in services over more than a year, failure to maintain contact, and lack of visitation led the court to such a conclusion.

6. Custodial Rights vs. Parental Rights

West Virginia law distinguishes between:

Custodial rights: The right to physical custody and day-to-day care of the child.
Parental rights: A broader bundle of rights, including custody, decision-making (education, medical, religious), and often rights to visitation and to consent to adoption or other major decisions.

Termination of custodial rights only may leave residual parental rights in place, allowing the parent to seek modification in the future. Termination of parental rights is a complete and final severance of the legal parent-child relationship. The mother sought the former as a less restrictive alternative; the court chose the latter due to statutory findings and permanency concerns.

7. Permanency and the Child’s Welfare

“Permanency” refers to establishing a stable, long-term living arrangement and legal status for the child—usually reunification, adoption, or permanent guardianship. The law prioritizes:

Timely decisions,
Stable caregiving relationships, and
Minimization of uncertainty and disruption in the child’s life.

In this case, the permanency plan is adoption in the children’s current placement. The Court concluded that allowing the mother to retain residual parental rights would undermine this goal.

8. Guardian ad Litem

A guardian ad litem (GAL) is an attorney appointed to represent the best interests of the child in abuse and neglect proceedings. Although the opinion notes the GAL’s appearance (Keith White), the decision does not detail his recommendations, but GALs typically play a key role in advocating for permanency and the child’s welfare.

G. Impact and Implications

1. For Parents in Abuse and Neglect Cases

The decision sends a clear message: completion of a single rehabilitative step is not enough if the parent does not actively and consistently engage with the court-ordered case plan and services afterward. Key takeaways:

Parents must maintain active contact with caseworkers, service providers, and their own counsel.
Excuses such as lack of phone service or identification will be weighed against the parent’s overall pattern of behavior—especially when they have extended periods and multiple court hearings to resolve such logistical issues.
Failure to comply with drug screening, particularly where it is a prerequisite to visitation, can powerfully undermine a claim of genuine commitment to reunification.

For parents, the opinion underscores that:

Improvement periods are opportunities, not guarantees.
Nonparticipation in services can rapidly shift the focus of the case from reunification to termination.

2. For DHS and Practitioners

For DHS and child welfare practitioners, In re T.W. and J.M.-1 illustrates:

The importance of offering a clear, reasonable array of services (parenting classes, life skills, drug treatment, counseling, visitation) and documenting those offers in the case plan.
The need to document contacts and attempted contacts with parents in written reports, which can then be admitted into evidence (as happened here, without objection).
That courts will look favorably on DHS when it not only offers services but also responds to specific barriers (e.g., the circuit court ordered DHS to help the mother obtain identification, and DHS complied).

Practitioners should view this case as a model of how thorough documentation and a well-drafted family case plan support dispositional decisions and withstand appellate review.

3. For Circuit Courts

For circuit judges, this decision reaffirms:

They may find “no reasonable likelihood” under § 49-4-604(d)(3) based on a pattern of nonparticipation, even in the face of isolated improvements (like a single inpatient treatment episode).
Once the statutory test in § 49-4-604(c)(6) is met and termination is necessary for the child’s welfare, they are not required to step through less restrictive alternatives such as termination of custody only.
They may and should consider the child’s need for permanency and long-term stability when choosing between dispositional options.

The decision also implicitly validates the circuit court’s measured approach—granting continuances, providing an improvement period, and even giving the mother extra time and specific assistance to address an identification issue before ultimately concluding that further delay was unwarranted.

4. For Children and Permanency Policy

From a child-centered perspective, the opinion underscores West Virginia’s continued commitment to:

Timely permanency;
Stability in caregiving relationships; and
Finality in legal status when parental rehabilitation does not materialize within a reasonable time.

By affirming adoption as the permanency plan after the termination of all parental rights, the Court acknowledges that children cannot remain in legal limbo indefinitely while a parent intermittently engages—or fails to engage—in services.

Even though this is a memorandum decision (and not a published opinion with new syllabus points), it reflects and strengthens the policy that the child’s welfare and need for stability can, and often do, outweigh a parent’s desire for additional time, particularly when there has been prolonged noncompliance.

IV. Conclusion

In re T.W. and J.M.-1 does not create new doctrine but firmly applies and reinforces existing West Virginia abuse and neglect law. The decision illustrates several key principles:

A parent’s sustained failure to participate in a reasonable family case plan and court-ordered services, including drug screening and visitation, justifies a finding that there is no reasonable likelihood that conditions of neglect can be substantially corrected in the near future.
Isolated rehabilitative steps—such as a completed inpatient treatment program—are insufficient to defeat termination when they are not followed by consistent engagement with the broader case plan.
The level of interest in visiting one’s children, as shown by concrete actions rather than promises, remains a vital factor in evaluating a parent’s potential for improvement.
Once the statutory threshold for termination is met under West Virginia Code § 49-4-604(c)(6) and (d), and when the child’s welfare and need for permanency require it, courts are not obliged to employ less restrictive dispositions like termination of custody alone.

In sum, the case stands as a clear reminder that in West Virginia’s abuse and neglect system, the law prioritizes children’s safety and permanency, and that parents must meaningfully and consistently engage with offered services to avoid the most drastic outcome: termination of parental rights.

This commentary is for informational and educational purposes only and does not constitute legal advice.