Parental Noncompliance Can Support Denial of a Continuance and Termination Without Lesser Alternatives

1. Introduction

In In re L.L. and H.L.-1, the Supreme Court of Appeals of West Virginia considered whether a father’s stated willingness to enter inpatient substance-abuse treatment required postponing the termination of his parental rights. The court also addressed whether the circuit court should have selected a less restrictive disposition rather than termination.

The father, identified as H.L.-2 to distinguish him from his child H.L.-1, challenged an October 28, 2025, order terminating his parental rights to both children. The West Virginia Department of Human Services (“DHS”) opposed the appeal, and the children were represented by a guardian ad litem.

The court unanimously affirmed in a memorandum decision under West Virginia Rule of Appellate Procedure 21. Rather than announcing a new doctrinal test, the decision applies established principles: continuances depend on the circumstances and remain within the trial court’s discretion; termination need not be preceded by lesser alternatives when the statutory findings support it; and an improvement period requires a written motion. Its practical significance lies in the distinction between a late promise to participate in treatment and an established record of meaningful participation.

2. Background and Procedural History

The allegations and adjudication

DHS filed its initial petition in May 2025. It alleged educational neglect based on twenty-five unexcused school absences for L.L. and eighteen for H.L.-1. 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. Additional allegations concerned parental drug abuse, fraudulent use of food stamps to pay rent, and insufficient food for the children.

After the circuit court ordered random drug screening, DHS amended the petition in June 2025 to allege that the father had tested positive for amphetamine and methamphetamine and had missed two tests. In July 2025, the court adjudicated him an abusing and neglecting parent on the grounds of substance abuse and educational neglect. The opinion does not identify the remaining petition allegations as separate adjudicated grounds.

The evidence at disposition

At the October 2025 dispositional hearing, a DHS case manager described substantial nonparticipation:

• The father completed only six of forty-eight required drug screens.
• Every completed screen was positive for illicit substances, including amphetamine and methamphetamine.
• He had not complied with offered services.
• He had not participated in supervised visitation with the children.

The father testified that he had attended three or four parenting and adult-skills classes but none since July 2025. He acknowledged missing several drug screens. He also claimed participation in an outpatient treatment program that permitted self-administered testing in connection with prescribed Suboxone, and he expressed willingness to enter inpatient rehabilitation.

The requested delay and termination order

At the conclusion of the hearing, the father requested a thirty-day continuance and asked the court to hold its ruling in abeyance so that he could enter inpatient treatment. The circuit court denied that request, finding no good cause and concluding that further delay would be an “exercise in futility” given his previous opportunities and failure to cooperate.

The circuit court then found both that there was no reasonable likelihood of substantially correcting the conditions of abuse and neglect in the near future and that termination was necessary for the children’s welfare. It terminated the father’s parental rights. The mother’s rights were also terminated, and the children’s permanency plan was adoption in a kinship placement.

3. Summary of the Opinion

The Supreme Court of Appeals rejected the father’s challenges on three related grounds:

1. No abuse of discretion in denying a continuance. His claimed outpatient participation and willingness to enter inpatient treatment did not outweigh the record of continued illicit drug use and nonparticipation in services.
2. No basis for relief concerning an improvement period. The appellate record did not establish that he had filed the written motion required to obtain one.
3. No requirement to impose a lesser disposition first. The evidence supported the finding that the conditions could not reasonably be substantially corrected in the near future. The separate finding that termination was necessary for the children’s welfare was not challenged on appeal.

The court therefore affirmed the October 28, 2025, order without oral argument.

4. Precedents Cited and Their Influence

In re K.S.: The appellate standards of review

The court relied on syllabus point 1 of In re K.S., 930 S.E.2d 400 (2026), to distinguish three forms of appellate review: substantive rulings are reviewed for abuse of discretion, factual findings for clear error, and legal questions de novo.

This framework matters because the father’s appeal principally challenged the circuit court’s assessment of his conduct and the usefulness of additional time. The appellate court examined whether the record supported those assessments and whether the circuit court acted within its discretion; it did not simply substitute its own preferred outcome.

In re Mark M.: 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 two complementary rules. First, a continuance lies within the trial court’s sound discretion. Second, whether denying one constitutes an abuse of discretion depends on the particular facts, especially the reasons presented when the request was made.

These rules directed attention to the father’s actual justification for delay. His request offered a prospective change in conduct after a prolonged failure to participate. The court considered that reason insufficient in light of the opportunities already afforded to him.

State v. Bush: The underlying continuance principles

State v. Bush, 162 W. Va. 168, 255 S.E.2d 539 (1979), supplied the continuance principles quoted through In re Mark M.. Its role was to reinforce both trial-court discretion and the requirement of a case-specific inquiry.

Accordingly, the decision does not establish an automatic rule against treatment-related continuances. It holds that denying this request was permissible on this record. A different explanation for delay, supported by different evidence of participation or obstacles, would still require an individualized assessment.

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

In a footnote, the court addressed the father’s assertion that he should have received an improvement period. 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 father neither identified nor included such a motion in the appellate record, and the record did not otherwise indicate that one had been filed. This precedent therefore foreclosed relief on that argument without requiring an assessment of whether he otherwise qualified for an improvement period.

In re Kristin Y.: Lesser alternatives are not always required

The court cited syllabus point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), for the rule that termination may occur without intervening less restrictive alternatives when there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected.

This rule directly answered the father’s second principal argument. The circuit court was not required to attempt a lesser disposition merely because one was theoretically available. The critical inquiry was whether the supported statutory findings justified termination.

In re R.J.M.: The foundation for proceeding directly to termination

In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980), was the source of the termination principle quoted in In re Kristin Y.. Its inclusion emphasizes that dispensing with intermediate alternatives is an established feature of West Virginia abuse-and-neglect law, not a new exception created in this case.

The principle does not make termination automatic upon a finding of parental misconduct. The present opinion also relied on the statutory requirement that termination be necessary for the children’s welfare.

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

The court cited In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996), for the significance of a parent’s interest in visiting children who are outside the parent’s custody. Such interest is relevant to whether the parent can improve sufficiently to meet minimum parenting standards.

Here, the absence of supervised visits reinforced the evidence from drug testing and service participation. Visitation was not treated as an isolated, automatic ground for termination; it was part of the broader assessment of the father’s potential for improvement.

5. Legal Reasoning

A. Demonstrated conduct outweighed a late expression of willingness

The central evidentiary contrast was between what the father said he intended to do and what he had done during the proceedings. His willingness to enter inpatient treatment was relevant, but it arose after repeated missed screenings, uniformly positive completed screens, discontinued classes, and no supervised visitation.

The court treated the continuance request as effectively acknowledging the earlier failure to participate. Against that background, the circuit court could reasonably conclude that another thirty days would not produce meaningful progress. The holding concerns the reasonableness of that prediction, not a categorical rejection of late treatment efforts.

B. Claimed outpatient treatment did not resolve the compliance concerns

The father’s account of outpatient treatment and self-administered testing did not establish compliance with the court-ordered random screening program or overcome the other evidence of nonparticipation. The opinion does not hold that prescribed Suboxone is improper or itself proves parental unfitness. Its reasoning rests on continued illicit substance use and failure to engage with the required services.

Similarly, the court did not expressly equate every missed screen with a positive result. The missed tests demonstrated noncompliance, while the completed tests separately established continued illicit drug use.

C. The statutory inquiry links substance abuse to parenting capacity and treatment response

West Virginia Code § 49-4-604(d), as applied in the opinion, addresses habitual substance abuse or addiction that seriously impairs proper parenting skills, coupled with failure to respond to or follow through with recommended, appropriate treatment that could improve parental functioning.

The relevant inquiry therefore extends beyond whether a parent has used drugs. It concerns the effect on parenting and the likelihood of correction through treatment. The father had already been adjudicated for substance abuse and educational neglect, and his subsequent conduct supported the finding that the conditions were unlikely to be substantially corrected in the near future.

D. Termination required two distinct findings

Under West Virginia Code § 49-4-604(c)(6), the court relied on two necessary conclusions:

• There was no reasonable likelihood that the conditions of abuse or neglect could be substantially corrected in the near future.
• Termination was necessary for the children’s welfare.

The father challenged the disposition and the refusal to allow more time, but he did not challenge the welfare finding. That omission narrowed the appellate dispute; it did not eliminate the circuit court’s obligation to make the finding. Once both statutory conclusions were established, the cited precedents permitted termination without first imposing lesser alternatives.

E. A continuance and an improvement period are procedurally different

A request to postpone a hearing is not the same as a request for a formal improvement period. The former was considered on its merits under the discretionary continuance standard. The latter failed because the required written motion was not shown in the record.

West Virginia Rule of Appellate Procedure 10(c)(7) reinforced this distinction by requiring pinpoint citations showing when and how an issue was presented below. An appellate assertion that an improvement period should have been granted could not supply the missing trial-level request.

6. Potential Impact and Limits

The decision offers practical guidance for future abuse-and-neglect proceedings:

• Participation records matter. Drug-screen attendance, test results, service engagement, and visitation can collectively support findings about the realistic prospect of improvement.
• Promises do not compel postponement. A stated intention to begin treatment does not necessarily require additional time when the existing record supports a finding that delay would be futile.
• Lesser dispositions are not mandatory preliminary steps. Courts may proceed directly to termination when the statutory findings are supported.
• Procedural requests must be properly made and preserved. A parent seeking an improvement period must file the required written motion and provide an adequate appellate record.

The decision’s reach is nevertheless limited. It establishes no fixed deadline for rehabilitation and no rule that addiction, a missed test, or imperfect compliance alone requires termination. Nor does it decide how a court should assess a request supported by substantial treatment progress or documented barriers to participation. The governing inquiry remains individualized and focused on the statutory criteria.

Its principal contribution is thus a concrete application of existing law: sustained nonparticipation across several aspects of a case can justify both refusing further delay and concluding that less restrictive dispositions would not adequately address the children’s circumstances.

7. Complex Concepts Simplified

Adjudication

The stage at which the court determines whether a parent has abused or neglected a child.

Disposition

The stage at which the court selects the legal response to the established abuse or neglect, potentially including termination of parental rights.

Continuance and abeyance

A continuance postpones proceedings. Holding a ruling in abeyance means delaying the decision. The father requested both to obtain time for treatment.

Improvement period

A formal opportunity to address the conditions of abuse or neglect and demonstrate improvement. It is distinct from merely postponing a hearing and requires a written motion.

Abuse of discretion

A standard recognizing that the trial court has room to make judgment calls. Appellate disagreement alone does not establish reversible error.

Clear error and de novo review

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

Less restrictive dispositional alternative

An available outcome less final than permanently ending parental rights. The opinion holds that such alternatives need not always be attempted first.

No reasonable likelihood of substantial correction in the near future

A practical, evidence-based assessment that the harmful conditions are unlikely to improve sufficiently soon—not a requirement to prove that improvement could never occur.

8. Conclusion

In re L.L. and H.L.-1 confirms that a late offer to enter treatment does not compel a continuance when sustained noncompliance supports the trial court’s contrary assessment. Continued illicit drug use, failure to complete screening and services, and absence from visitation supported the finding that substantial correction was not reasonably likely in the near future.

With the separate welfare finding unchallenged, termination without intervening lesser alternatives was permissible. The decision also underscores a procedural lesson: seeking more time is not a substitute for filing the written motion required for an improvement period.