Date: Mar 27, 2026

Refusal to Acknowledge Substance Abuse and Decline Inpatient Treatment Justifies Denial of Improvement Period and Supports Termination Without Less Restrictive Alternatives

1. Introduction

Case: In re E.M.-1 and E.M.-2 (Supreme Court of Appeals of West Virginia, Memorandum Decision issued March 24, 2026).
Parties: Petitioner Mother (G.F.) appealed the Circuit Court of Braxton County’s order terminating her parental and custodial rights to two children, E.M.-1 and E.M.-2. The West Virginia Department of Human Services (“DHS”) was the petitioner below, and the children were represented by a guardian ad litem.

Background: DHS filed an abuse and neglect petition alleging the mother’s substance abuse impaired parenting; the children were exposed to an inappropriate individual (a boyfriend whose parental rights to his own children were terminated due to sexual abuse and operation of a methamphetamine lab); domestic violence occurred in the children’s presence; and the children lacked adequate shelter and education (including reports of sleeping in a vehicle and significant school absences).

Key issues on appeal: (1) Whether the circuit court erred in denying the mother’s request for an improvement period; and (2) whether termination was improper because a less restrictive alternative should have been used.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed. It held the circuit court did not err in denying an improvement period because the mother failed to demonstrate, by clear and convincing evidence, that she was likely to fully participate. The record showed continued drug use, an attempt to defeat testing (using a urine pack), and—critically—an unwillingness to enter long-term inpatient treatment even after the circuit court gave her a final opportunity to do so.

The Court further held termination was permissible without intervening less restrictive alternatives because the circuit court found no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and termination was necessary for the children’s welfare, particularly given their need for continuity and stability.

3. Analysis

A. Precedents Cited

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
Role in this decision: Provided the appellate review framework: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. This standard matters because the circuit court’s credibility determinations and findings about the mother’s refusal of treatment and lack of accountability were central and entitled to deference unless clearly erroneous.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re Charity H., 215 W. Va. 208, 217, 599 S.E.2d 631, 640 (2004))
Rule applied: “In order to remedy the abuse and/or neglect problem, the problem must first be acknowledged.” Failure to acknowledge makes the problem untreatable and turns an improvement period into “an exercise in futility at the child’s expense.”
Role in this decision: This principle was the doctrinal spine for affirming denial of an improvement period. The Court relied on the circuit court’s findings that the mother failed to take responsibility and refused to address her substance abuse in a meaningful, treatment-compliant way—facts that fit the “futility” rationale of In re Timber M. and In re Charity H.
In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002)
Rule applied: A circuit court has discretion to refuse an improvement period when no improvement is likely.
Role in this decision: Supported the conclusion that the denial of an improvement period was within the circuit court’s discretion given the mother’s demonstrated noncompliance and explicit refusal of inpatient rehabilitation.
Syl. Pt. 5, in part, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980))
Rule applied: Termination of parental rights may be employed without intervening less restrictive alternatives when there is no reasonable likelihood that conditions of neglect or abuse can be substantially corrected (under the statute) and termination is necessary for the child’s welfare.
Role in this decision: Directly answered the mother’s “least restrictive alternative” argument. Once the circuit court found “no reasonable likelihood” of correction in the near future, the precedent allows termination without first attempting lesser dispositional options.

B. Legal Reasoning

Improvement period requires a predictive showing of participation.
The Court applied W. Va. Code § 49-4-610, which requires the parent to demonstrate by clear and convincing evidence that she is likely to fully participate in an improvement period. The mother’s conduct undermined that showing: she continued to test positive for illicit drugs, attempted to cheat a drug screen, and rejected the recommended treatment duration as too long.
Acknowledgment and accountability are prerequisites to treatment efficacy.
Relying on In re Timber M. (and its quoted language from In re Charity H.), the Court treated the mother’s failure to take responsibility—paired with her unwillingness to enter inpatient rehabilitation—as a functional bar to improvement-period relief. In the Court’s framing, without acknowledgment the problem becomes “untreatable,” making court-ordered services performative rather than protective of children.
The circuit court’s “last chance” order sharpened the evidentiary record.
At the initial dispositional hearing, despite finding the evidence supported termination, the circuit court declined to terminate immediately and instead ordered enrollment in long-term inpatient treatment within seven days. The mother then testified she did not enroll because she was not “firmly ready for rehab” and was unequivocally unwilling to attend inpatient rehabilitation. This sequence supplied a concrete, near-term refusal—strong evidence of non-participation likelihood and of the inability to correct conditions promptly.
Termination without lesser alternatives follows from “no reasonable likelihood” findings.
Applying W. Va. Code § 49-4-604(c)(6) and the syllabus point from In re Kristin Y. (quoting In re R.J.M.), the Court emphasized that when there is no reasonable likelihood of substantial correction in the near future—and termination is necessary for welfare—termination may proceed without intermediate steps. The Court tied this to W. Va. Code § 49-4-604(d)(1), focusing on habitual substance abuse/addiction that seriously impairs parenting coupled with failure to respond to recommended treatment.
Best interests (“polar star”) and permanency needs controlled the dispositional outcome.
The circuit court emphasized the “polar star” principle: the best interest of the children. The Supreme Court echoed that orientation, underscoring the children’s need for continuity of caretakers and the time required to integrate them into a stable home—considerations that weigh against prolonging uncertainty when a parent refuses the primary corrective intervention.

C. Impact

Reinforcement of the “futility” doctrine in improvement-period litigation: The decision strengthens the practical rule that improvement periods are not granted to “test” whether a parent will engage; they are granted when evidence shows the parent will engage. Express refusal of core treatment (here, inpatient rehabilitation) is powerful evidence that the statutory participation burden cannot be met.
Substance-abuse cases may turn on treatment posture, not mere verbal stipulation: Although the mother stipulated at adjudication, the Court’s analysis suggests that stipulation alone does not equate to acknowledgment sufficient to render the problem treatable. Courts may look for demonstrated accountability and willingness to follow recommended treatment.
Procedural lesson for circuit courts: The circuit court’s “one last opportunity” approach created a clear record on willingness and compliance. Future courts may similarly structure dispositional proceedings to test immediacy and sincerity of treatment engagement without prolonging the case indefinitely.
Limits on “least restrictive alternative” arguments: The decision reiterates that once statutory “no reasonable likelihood” findings are made and supported, less restrictive alternatives need not be attempted, especially where a parent refuses the principal remedial service.

4. Complex Concepts Simplified

Improvement period: A court-ordered window of time during which a parent receives services (treatment, counseling, parenting education, drug screening, etc.) to correct the conditions of abuse/neglect. Under W. Va. Code § 49-4-610, the parent must prove by clear and convincing evidence that she is likely to fully participate.
Clear and convincing evidence: A heightened burden of proof—more demanding than “more likely than not,” but less than “beyond a reasonable doubt.” It requires a firm belief or conviction in the truth of the proposition.
Adjudication vs. disposition: Adjudication determines whether abuse/neglect occurred. Disposition decides what happens next (services, placement, termination, etc.) based on the child’s welfare and the likelihood of correction.
“No reasonable likelihood” of correction: A statutory finding (W. Va. Code § 49-4-604(c)(6)) that the conditions of abuse/neglect cannot be substantially corrected soon enough to meet the child’s needs. In substance-abuse contexts, W. Va. Code § 49-4-604(d)(1) focuses on addiction that seriously impairs parenting and failure to follow through with recommended treatment.
Least restrictive alternative: The notion that courts should prefer less drastic measures than termination when they can adequately protect the child. But under In re Kristin Y. and In re R.J.M., termination may proceed without intermediate steps once “no reasonable likelihood” and “necessary for welfare” are found.

5. Conclusion

In re E.M.-1 and E.M.-2 reaffirms that a parent seeking an improvement period must do more than request services or stipulate to allegations; the parent must show, by clear and convincing evidence, a real likelihood of full participation. The Court treated refusal to acknowledge and address substance abuse—especially an unequivocal unwillingness to enter recommended inpatient treatment—as making an improvement period futile and as supporting “no reasonable likelihood” findings. The decision also underscores that, when those statutory findings are made and termination is necessary for the children’s welfare, termination may occur without attempting less restrictive alternatives, consistent with West Virginia’s permanency-focused best-interests mandate.