Reaffirming Termination as the Sole Disposition When Improvement Efforts Fail and Contact with an Abuser Continues: Commentary on In re N.D., T.D., and S.D.

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re N.D., T.D., and S.D., No. 24-632 (Nov. 4, 2025), affirms the termination of a mother’s parental rights in an abuse and neglect proceeding arising from severe domestic violence and entrenched substance abuse. The key appellate issue was whether termination of parental rights was justified when the mother argued that a less restrictive dispositional alternative should have been used.

The decision does not announce a brand-new doctrine; instead, it firmly applies and reinforces existing West Virginia law that:

Once a court finds there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future, and termination is necessary for the children’s welfare,
The court may terminate parental rights without employing “less restrictive” alternatives, such as additional improvement periods, temporary placements, or custodial arrangements short of termination.

Particularly important is the Court’s application of this principle in a context where:

The abusing parent is also a victim of domestic violence by the other parent;
The parent repeatedly enters and fails out of treatment programs;
The parent continues to maintain contact with the abusive partner despite court orders and service-provider recommendations.

This commentary examines the background of the case, the Supreme Court’s reasoning, its reliance on earlier precedents, and the implications for future abuse and neglect proceedings in West Virginia.

II. Factual and Procedural Background

A. The Underlying Allegations

The West Virginia Department of Human Services (“DHS”) filed the abuse and neglect petition in September 2023 concerning three very young children, N.D., T.D., and S.D., then around one and two years old. The petition alleged:

Severe domestic violence in the home, including:
- The father threatened to throw the children down the stairs or abandon them in a shelter;
- On one occasion, a drug deal took place in the home in the presence of the children, during which the dealer held a gun to the mother’s head and stole $200;
- After that incident, the father beat the mother so severely that she lost consciousness and required hospitalization;
- In another incident, the father punched the mother in the ribs.
Chronic and serious substance abuse by both parents:
- While hospitalized with a brain abscess, the mother tested positive for cocaine, cannabinoids, buprenorphine, and fentanyl;
- Between July and August 2023 she tested positive for cocaine, naloxone, marijuana, and fentanyl;
- There was evidence she was engaging in intravenous drug use.
Unsafe decisions regarding health and childcare:
- Hospital staff reported that the mother signed herself out against medical advice because no one was available to watch the children.
Ongoing contact despite criminal no-contact orders:
- There was a criminal no-contact order between the parents, but they continued to reside together.

A CPS worker testified to witnessing marks and scars on the mother’s body consistent with domestic violence, which the mother attributed to the father’s abuse.

B. Adjudication as Abusing and Neglectful Parents

At the October 2023 adjudicatory hearing, the mother (H.D.) and the father did not contest adjudication. The mother made key admissions:

She used illegal substances;
Her substance use negatively affected her parenting ability;
She engaged in domestic violence with the father in the presence of the children.

Based on these admissions and other evidence, the circuit court adjudicated both parents as abusive and neglectful.

C. Post-Adjudicatory Improvement Period

The circuit court granted the mother a post-adjudicatory improvement period. This is a statutorily authorized period during which an abusing or neglectful parent is given a structured opportunity—and services from DHS—to remedy the conditions that led to the filing of the petition.

The mother’s improvement plan required that she:

Submit to regular drug screens;
Complete a psychological evaluation;
Complete parenting training and adult life skills classes;
Participate in substance abuse treatment;
Attend NA/AA meetings and provide attendance logs;
Follow all recommendations of treatment and service providers.

She did complete a psychological evaluation, but her prognosis was described as “poor” because:

She acknowledged significant abuse in her relationship with the father;
Yet she minimized or was dismissive of that abuse;
She was overly optimistic about the father’s ability to change.

D. Attempts to Separate the Parents and Bifurcation

At a March 2024 review hearing, the mother reported that the father was interfering with her ability to follow through with her case plan. In response, the circuit court:

Bifurcated the parents’ cases—i.e., split them into separate proceedings;
Ordered them to have no contact with each other.

At a status hearing two months later, however, the mother admitted she had continued contact with the father in defiance of the no-contact order. Because both parties refused to abide by the order, the court eventually reconsolidated their cases.

E. Continued Services and the Mother’s Compliance Failures

During the improvement period and later:

The mother enrolled in a substance abuse treatment facility in April 2024;
She did not inform the program about the existing no-contact order with the father;
She continued to communicate with the father during treatment;
She was unsuccessfully discharged at the end of May 2024 for continuing to violate rules.

A CPS worker testified that the mother:

Failed to comply with most of the conditions of her improvement period;
Completed one 28-day program but did not maintain sobriety thereafter;
Had multiple positive drug screens;
Frequently failed to appear for drug screening at all;
Failed to complete multiple treatment programs;
Was terminated from a medication-assisted treatment program and from day report for noncompliance;
Did not complete parenting or adult skills classes;
Did not provide NA/AA attendance logs;
Was reluctant to engage in longer-term inpatient treatment.

DHS concluded that the mother was unable to maintain sobriety and unwilling to separate from the abusive father, and thus recommended termination of parental rights.

F. Dispositional Hearing and Termination

At the dispositional hearing (held over several days in July and September 2024):

The substance abuse program director and CPS worker testified to the mother’s noncompliance and relapses;
The mother testified about the father’s physical, mental, and verbal abuse, including death threats and violent behavior;
Yet she also made statements minimizing or contradicting aspects of that abuse, including suggesting that he had not physically abused her after the children were born;
She admitted she failed to complete multiple treatment programs and acknowledged that she could not presently care for the children until she received further treatment and support.

Her counsel conceded she had attended multiple treatment facilities, relapsed twice, but continued to seek further treatment and work on sobriety.

The circuit court found:

The mother had not demonstrated an ability to correct the conditions of abuse and neglect in the near future;
The children’s welfare required termination of her parental rights;
No less restrictive dispositional alternative was appropriate, given the mother’s lack of progress.

The court terminated the parental rights of both parents, and the permanency plan for the children was adoption in their current foster placement. The mother appealed only the termination of her parental rights.

III. Summary of the Supreme Court’s Decision

On appeal, the mother argued that the circuit court should have chosen a less restrictive alternative instead of terminating her parental rights—presumably some combination of continued services, temporary custody arrangement, or an additional/post-dispositional improvement period.

The Supreme Court:

Applied the standard of review from In re Cecil T.:
- Findings of fact are reviewed for clear error;
- Conclusions of law are reviewed de novo.
Reiterated the rule from In re Kristin Y. and In re R.J.M. that:
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 that conditions of neglect or abuse can be substantially corrected.
Applied West Virginia Code § 49-4-604(d)(3), which defines circumstances under which there is “no reasonable likelihood” that conditions can be corrected—particularly when the parent has not responded to or followed through with a reasonable family case plan and rehabilitative efforts;
Confirmed that courts need not “exhaust every speculative possibility of parental improvement” before terminating parental rights when the child’s welfare would be seriously threatened by delay;
Held that ample evidence supported the circuit court’s finding that:
- The mother failed to comply with her improvement period;
- She continued to use drugs and did not follow through with treatment and screening requirements;
- She maintained contact with the abusive father and minimized his abuse;
- There was no reasonable likelihood she would substantially correct conditions in the near future.
Concluded that termination of parental rights was both authorized and appropriate under § 49-4-604(c)(6), which permits termination upon such findings when necessary for the child’s welfare.

The Court therefore affirmed the circuit court’s October 2, 2024, termination order.

IV. Detailed Analysis

A. Standard of Review and Appellate Framework

The Court began by citing syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), which sets the familiar standard of review in abuse and neglect appeals:

Findings of fact by the circuit court are reviewed under a clearly erroneous standard—an appellate court will not disturb them unless, after reviewing the entire record, it is firmly convinced that a mistake has been made.
Conclusions of law (interpretations of statutes, rules, and legal standards) are reviewed de novo, meaning the Supreme Court gives no deference and decides the legal question anew.

This framework is critical in parental termination cases because:

Trial courts are in a superior position to evaluate witness credibility, demeanor, and the subtleties of a parent’s progress or lack thereof;
The appellate court’s role is not to re-weigh evidence, but to ensure the legal standards were correctly applied and that factual findings are supported by the record.

B. Core Legal Issue: Was Termination Premature or Excessive?

The mother framed the key issue as whether the circuit court erred by terminating her parental rights rather than using a less restrictive dispositional alternative. In West Virginia abuse and neglect law, dispositional alternatives include, among others:

Returning the child home under supervision;
Granting a post-dispositional improvement period;
Placing the child in the custody of a non-abusing parent or relative;
Long-term foster care (with some limitations);
Termination of parental rights.

The statutory framework generally prefers that courts use the least restrictive alternative consistent with the child’s welfare. However, longstanding case law recognizes that termination can be used without prior resort to lesser options if certain conditions are met.

C. Precedents and Statutory Framework

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

The Supreme Court relied on syllabus point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), which itself quoted syllabus point 2 of In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980):

“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 … that conditions of neglect or abuse can be substantially corrected.”

These cases form a cornerstone of West Virginia’s child welfare jurisprudence. They balance:

The substantive and constitutional importance of parental rights;
Against the equally compelling need to protect children from ongoing or chronic harm.

They underscore two propositions:

Courts may bypass “stepped-down” dispositions (like additional improvement periods) when the evidence shows that such measures would not realistically correct the underlying conditions.
The focus is on whether there is a reasonable likelihood of correction in the near future, not hypothetical or remote possibilities.

R.J.M. is also cited (syllabus point 1, in part) for the principle that courts are not required to:

“exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened.”

This is central in cases like In re N.D., T.D., and S.D., where the parent is still actively struggling, seeking treatment, and at some level expressing a desire to do better, but has not shown real, sustained progress.

2. In re Cecil T. – Guidance on Appellate Review

While In re Cecil T. is mainly procedural, its importance lies in preserving the discretion of the circuit court in weighing the parent’s performance over time. The Supreme Court’s reliance on this case signals:

The Court’s deference to trial-level factual determinations about a parent’s efforts, credibility, and prognosis;
That the mother’s disagreement with the trial court’s assessment of her progress is insufficient for reversal, absent clear error.

3. West Virginia Code § 49-4-604(c)(6) and (d)(3)

The Court anchored its decision in statutory law:

§ 49-4-604(c)(6) authorizes termination of parental rights:
“[u]pon a finding that 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.”
§ 49-4-604(d)(3) sets forth one circumstance in which “no reasonable likelihood” is deemed to exist:
When “[t]he abusing parent … [has] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts … designed to reduce or prevent the abuse or neglect of the child.”

In this case, the mother’s pattern—multiple failures to complete treatment programs, repeated drug use, chronic noncompliance with drug screening, failure to complete parenting classes, and defiance of no-contact orders—fits squarely within § 49-4-604(d)(3).

D. Application of Law to the Mother’s Circumstances

The Supreme Court’s reasoning can be distilled into several steps:

The family case plan and services were reasonable and substantial.
The mother was offered:
- Drug treatment (including medication-assisted treatment and at least one 28-day program);
- Drug screening;
- Parenting and life skills classes;
- NA/AA support;
- Psychological evaluation and recommendations;
- A no-contact order with the abusive father to support her safety and compliance.
These efforts meet the statutory requirement of “reasonable … rehabilitative efforts.”
The mother did not successfully follow through with these efforts.
Key failures included:
- Positive drug screens and continued use of illegal substances;
- Failure to appear consistently for drug screening;
- Multiple unsuccessful discharges from treatment programs for noncompliance;
- Noncompletion of parenting and skills classes;
- Failure to document NA/AA attendance;
- Continuing involvement with the abusive father despite:
  - A criminal no-contact order;
  - A bifurcation order by the circuit court;
  - Psychological evidence that her denial or minimization of the abuse was itself a barrier to change.
Her own testimony underscored the lack of present parental fitness and short-term prospects.
The mother admitted she:
- Had not successfully completed treatment;
- Would not be able to care for the children without further treatment and support;
- Was still actively seeking programs, i.e., her recovery was still at a very early and unstable stage.
This admission directly undermines any suggestion that a short additional period would likely result in a safe reunification.
The children’s age and vulnerability amplified the urgency.
The children were extremely young (about one and two years old at the start of the case). Very young children:
- Require high, consistent caregiving;
- Are particularly harmed by instability, uncertainty, and prolonged foster care.
Although the Court does not dwell on this, child welfare jurisprudence typically emphasizes that small children cannot “wait indefinitely” for parental rehabilitation.
Therefore, there was “no reasonable likelihood” of near-term correction, and termination was necessary for the children’s welfare.
Given the mother’s history during the proceedings, the Supreme Court found the circuit court’s determinations well supported. Under § 49-4-604(c)(6), those findings are sufficient to justify termination without resort to lesser dispositional alternatives.

E. Domestic Violence, Victim-Parents, and Child Protection

A notable dimension of this case is that the mother is both:

An abusive/neglectful parent for purposes of the statute; and
A victim of domestic violence at the hands of the father.

The opinion reflects the following realities:

The mother suffered severe abuse (threats to kill her, physical assaults causing loss of consciousness, etc.);
Her psychological evaluation noted an unhealthy optimism about the father’s ability to change and minimization of abuse;
She continued to have contact with him despite protective orders and court directives.

However, the Court’s analysis makes clear that:

While domestic violence victimization is highly relevant context, it does not excuse a failure to take protective steps for the children when support and legal orders are in place;
The statutory test remains whether the parent has substantially corrected the conditions of abuse and neglect and can safely parent in the near future;
The mother’s continued involvement with the abuser, coupled with her substance abuse, is treated as an unresolved source of risk to the children.

This underscores a consistent theme in West Virginia law: a parent may be a victim of intimate partner violence and still be legally responsible for failing to protect children from that violence, particularly when the parent is offered—but does not effectively use—legal protections and services meant to facilitate separation and safety.

F. Rejection of the “Least Restrictive Alternative” Argument

The mother’s central appellate contention was that the circuit court should have employed a less restrictive alternative to termination. In addressing this, the Court effectively clarifies (and reiterates) the relationship between:

The general preference for the least restrictive dispositional alternative; and
The specific statutory and case law rules that allow direct termination when “no reasonable likelihood” of correction exists.

Through its reliance on Kristin Y. and R.J.M., the Court confirms that:

The “least restrictive alternative” principle is not absolute;
Once the statutory threshold of § 49-4-604(c)(6) and (d) is met, the court has the authority—and in many cases the obligation—to terminate, even without trying additional or incremental alternatives;
What is “least restrictive” must always be evaluated in conjunction with the child’s welfare. An alternative that prolongs instability or leaves children exposed to ongoing risk is not truly “less restrictive” from the children’s point of view.

The decision thus reinforces that the “least restrictive” language cannot be used to force courts to extend proceedings indefinitely where the evidence shows a pattern of noncompliance and relapse, and where the parent’s own testimony concedes she is not yet in a position to resume care.

G. Practical Implications and Likely Impact

Although issued as a memorandum decision under Rule 21 (which signals the Court viewed the issues as controlled by existing law rather than presenting novel legal questions), the case has several practical implications:

Reinforcement of strict standards for improvement period compliance.
Parents must do more than enroll in services or express a desire to change. They must:
- Complete treatment programs or demonstrate meaningful progress;
- Maintain sobriety, especially over a sustained period;
- Consistently comply with drug screening and other conditions;
- Follow legal orders, especially no-contact orders with abusive partners.
Partial, sporadic, or short-lived efforts—especially accompanied by relapses and noncompliance—will frequently be deemed insufficient.
Continuing contact with an abusive partner as a critical factor.
The decision highlights that:
- A parent’s ongoing relationship with an abuser, in defiance of court orders and professional recommendations, is strong evidence of failure to correct the conditions leading to adjudication;
- Minimization of domestic violence in testimony or psychological evaluation may be interpreted as a barrier to safely parenting.
Clarification for counsel on what “less restrictive alternative” arguments can realistically achieve.
On appeal, an argument that “termination was not the least restrictive alternative” will likely fail where:
- The record documents a pattern of noncompliance and relapse across the life of the case;
- Statutory “no reasonable likelihood” criteria under § 49-4-604(d) are clearly satisfied;
- The parent concedes that they are not yet prepared to resume parenting.
Emphasis on the child’s timeframe rather than the parent’s recovery timeline.
The decision reflects the consistent judicial emphasis that children—especially infants and toddlers—cannot be kept in legal and emotional limbo indefinitely while parents pursue uncertain treatment trajectories.

V. Clarification of Key Legal Concepts

To make the opinion more accessible, several core legal terms used in the decision can be explained in plain language:

Abuse and Neglect Proceeding
A civil case brought under the state’s child welfare laws to determine whether children have been abused or neglected and what protective orders or placements are needed. It is separate from any criminal case that may arise from the same conduct.
Adjudication / Adjudicatory Hearing
The stage where the court decides whether the allegations of abuse or neglect are true. If the parent admits or the evidence proves abuse/neglect, the parent is “adjudicated” an abusing or neglectful parent.
Disposition / Dispositional Hearing
Once abuse/neglect is adjudicated, the court must determine the appropriate outcome or “disposition” for the children and parents—this can range from returning the children home to terminating parental rights.
Improvement Period (Post-Adjudicatory / Post-Dispositional)
A court-authorized period during which a parent is given services and conditions to meet in order to correct the problems that led to abuse or neglect. A post-adjudicatory improvement period occurs after adjudication but before final disposition. A post-dispositional improvement period happens after an initial dispositional order, often when some rights or custody have already been modified but the court is still giving the parent another chance.
Least Restrictive Dispositional Alternative
The idea that the court should choose the mildest legally permissible disposition that adequately protects the child’s welfare. For example, supervised reunification may be less restrictive than termination, but only if it is safe and workable.
No Reasonable Likelihood That Conditions Can Be Substantially Corrected in the Near Future
A statutory standard meaning that, based on the evidence and the parent’s performance, it is not realistically likely that the parent will fix the problems that led to abuse/neglect within a time frame that is compatible with the child’s needs and safety. Section 49-4-604(d)(3) specifically includes situations where the parent has not followed through with a reasonable family case plan or rehabilitative efforts.
Family Case Plan
A written plan, developed by DHS and approved by the court, detailing what services will be provided, what conditions the parent must meet (e.g., drug treatment, parenting education), and what goals must be achieved to move toward reunification.
Termination of Parental Rights
The most drastic disposition. It permanently severs the legal parent-child relationship, including rights to custody and decision-making, and generally clears the way for adoption.
Bifurcation and Reconsolidation
Bifurcation means splitting one case into separate parts or separate cases—for example, handling the mother’s case separately from the father’s. Reconsolidation means merging the cases back together, as happened here when both parents continued to disregard the no-contact orders.
Memorandum Decision (Rule 21)
A shorter form of appellate decision used when the Supreme Court determines that the case does not present novel or complex legal issues requiring a full published opinion. It still resolves the rights of the parties and typically applies settled law to the specific facts.
Clear Error / De Novo Review
Clear error review means the appellate court will uphold the trial court’s factual findings unless a serious mistake is apparent from the record. De novo review of legal questions means the appellate court reconsiders the legal issue from scratch, without deference to the lower court’s interpretation.

VI. Conclusion

In re N.D., T.D., and S.D. exemplifies the consistent approach of the Supreme Court of Appeals of West Virginia in abuse and neglect proceedings: when a parent, despite receiving reasonable rehabilitative services and legal protections, fails to substantially comply with an improvement period and continues patterns of substance abuse and exposure to domestic violence, the court may—and often must—terminate parental rights without experimenting with additional, less restrictive alternatives.

The case underscores several key points:

“Least restrictive alternative” arguments cannot overcome clear statutory findings under § 49-4-604(c)(6) and (d)(3);
Domestic violence victimization, while relevant and sympathetic, does not negate a parent’s obligation to use available protections and services to safeguard children;
Ongoing contact with an abuser, in violation of no-contact orders and professional recommendations, is powerful evidence of an unresolved risk to children;
Children’s need for stability and safety in the near term takes precedence over indefinite hope that a parent may eventually achieve sobriety and separation from an abuser.

While the decision does not expand West Virginia law, it sharply illustrates how existing statutes and precedents—particularly Kristin Y., R.J.M., and § 49-4-604—operate in practice. For practitioners, it serves as a clear reminder that:

Compliance with an improvement period must be concrete, sustained, and verifiable;
Arguments for additional opportunities must be grounded in demonstrable progress, not merely in future intentions or new treatment plans.

In the broader legal context, In re N.D., T.D., and S.D. reinforces the principle that the child’s right to a safe, stable, and permanent home within a reasonable time frame is central in abuse and neglect jurisprudence and may, when necessary, override parental interests in further chances at rehabilitation.