Relapse and Non‑Engagement After Extended Improvement Periods Satisfy “No Reasonable Likelihood” Standard Under W. Va. Code § 49‑4‑604: Commentary on In re K.M. and L.M. (W. Va. 2025)

Introduction

In In re K.M. and L.M., the Supreme Court of Appeals of West Virginia issued a memorandum decision affirming the termination of a mother’s parental, custodial, and guardianship rights following a prolonged child abuse and neglect proceeding centered on substance use disorder. The case presents a familiar yet consequential application of West Virginia’s abuse and neglect framework: when a parent receives multiple improvement periods and extensive services but then relapses and ceases engagement, circuit courts may find there is “no reasonable likelihood” that conditions of abuse and neglect can be corrected in the near future and proceed directly to termination without employing less restrictive alternatives.

The petitioner mother, S.S., stipulated to abuse/neglect based on impairment from prescription drug use and was granted both post-adjudicatory and post-dispositional improvement periods, during which she completed two recovery programs. However, after an overdose in late July 2024, she stopped engaging in services and missed visits. The circuit court found she was “out of time” and terminated her rights. On appeal, she challenged the “no reasonable likelihood” finding and urged less restrictive alternatives to termination, but the Supreme Court affirmed, relying on statutory criteria in W. Va. Code § 49‑4‑604 and precedent permitting termination without intermediate alternatives when the statutory standard is met.

Summary of the Opinion

The Supreme Court (Wooton, C.J., Bunn, Trump, Ewing, and Senior Status Justice Hutchison concurring) affirmed the Wood County Circuit Court’s January 8, 2025 order. The Court:

Applied the standard of review from Syllabus Point 1 of In re Cecil T. (facts for clear error; law de novo).
Reiterated that termination may proceed without less restrictive alternatives if there is no reasonable likelihood that abuse/neglect conditions can be substantially corrected (In re Kristin Y., quoting In re R.J.M.).
Found sufficient record support—particularly DHS reports admitted without objection showing a July 31, 2024 heroin overdose, eviction, and cessation of services and visitation—to uphold the circuit court’s finding that the mother had not responded to treatment and was not closer to resolving her drug problem.
Concluded that W. Va. Code § 49‑4‑604(d)(1) and § 49‑4‑604(c)(6) were satisfied: the mother’s habitual drug abuse impaired parenting and she had not responded to treatment, and termination was necessary for the children’s welfare, including their need for permanency, stability, and safety.
Affirmed without oral argument via Rule 21, signaling that the appeal presented no new point of law requiring elaborate discussion.

Case Background and Procedural Timeline

May 2023: DHS files a petition alleging parental impairment due to illegal substance abuse and unsafe housing conditions (drug paraphernalia and white residue within the children’s reach). Law enforcement found the mother intoxicated outside with the children and unable to identify her residence; inside, they observed a scale, white residue, a straw, foil, and spoons.
July 2023: At adjudication, the mother stipulates to abuse/neglect based on abuse of lorazepam and methadone. The court grants a post-adjudicatory improvement period with conditions including sobriety, drug screening, parenting classes, safe housing, and inpatient or intensive outpatient treatment.
January 2024: Review hearing—parties report the mother is in inpatient recovery and planning a transition to sober living; the improvement period is extended.
April 2024: Based on progress and completion of two recovery programs, the court grants a post-dispositional improvement period on DHS’s recommendation.
July 2024: Providers express concerns about the mother’s ability to care for the children independently.
September 2024: DHS report (with police report) admitted without objection: mother overdosed on heroin on July 31, 2024, was evicted, stopped communicating with DHS, and ceased services and visitation. The court terminates the post-dispositional improvement period.
October 2024: Dispositional hearing—DHS reports the mother contacted her case worker for the first time since July, reporting entry into another treatment program; DHS and the guardian ad litem recommend termination; the mother testifies. The court finds she is “out of time,” not closer to resolving her drug problem, and terminates her rights, finding termination necessary for the children’s welfare.
January 8, 2025: Termination order entered.
October 14, 2025: Supreme Court affirms in a memorandum decision.

Analysis

Precedents Cited and Their Influence

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), Syl. Pt. 1
The Court reiterates the familiar dual standard: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. In practice, this means deference to the circuit court’s on-the-ground assessment of the mother’s progress (or regression) and credibility, particularly where DHS reports were admitted without objection and the guardian ad litem and DHS made consistent recommendations. That framework set a high bar for the mother to overturn the circuit court’s fact-bound “no reasonable likelihood” finding.
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), Syl. Pt. 5 (quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980), Syl. Pt. 2)
Kristin Y., channeling the foundational R.J.M. rule, confirms that once “no reasonable likelihood” is established, a circuit court may terminate parental rights “without the use of intervening less restrictive alternatives.” This precedent directly disposes of the mother’s appellate argument that the court abused its discretion by not employing less restrictive alternatives. The Supreme Court’s reliance on this line of cases underscores that less restrictive options are not obligatory if the statutory threshold is met.

Statutory Framework and Legal Reasoning

The opinion turns on the application of West Virginia’s abuse and neglect dispositional statute, specifically:

W. Va. Code § 49‑4‑604(d)(1): permits a “no reasonable likelihood” finding where the abusing parent has “habitually abused or [is] addicted to…drugs, to the extent that proper parenting skills have been seriously impaired” and “has not responded to…treatment which could have improved [her] capacity for adequate parental functioning.”
W. Va. Code § 49‑4‑604(c)(6): authorizes termination “[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.”

Applying § 49‑4‑604(d)(1), the circuit court found—and the Supreme Court agreed—that the mother’s substance use disorder, culminating in a heroin overdose on July 31, 2024, her eviction, and her complete disengagement from services and visitation thereafter, demonstrated both (1) a serious impairment of parenting and (2) a failure to respond to treatment despite multiple opportunities and completed programs. The Court explicitly noted the mother’s own acknowledgment on appeal of this “misstep,” which caused her non-participation from approximately August through October 2024.

The Court also emphasized that the circuit court found termination necessary for the children’s welfare in light of their need for “permanency, stability, and safety.” That independent best-interests finding—unchallenged on appeal—satisfies the second prong of § 49‑4‑604(c)(6).

The mother’s principal appellate claim—that the circuit court erred in concluding there was no reasonable likelihood of correction and should have used less restrictive alternatives—was foreclosed by the record and by controlling caselaw. Kristin Y./R.J.M. permits direct termination once the statutory threshold is met; the Supreme Court’s factual deference under Cecil T. led it to credit the circuit court’s assessment that, even after extended services and two successful program completions, the mother was “not any closer to resolving [her] drug problem.”

Finally, although the appellant did not include a transcript of the dispositional hearing, the Supreme Court identified ample record evidence—DHS reports admitted without objection and consistent recommendations from DHS and the guardian—to support the circuit court’s factual findings. The Court therefore affirmed without the need for oral argument, per Rule 21, reflecting that the outcome was driven by settled law applied to a developed record.

Impact and Practical Consequences

Reinforcement of Permanency Timelines: The circuit court’s observation that the mother was “out of time” highlights that improvement periods are finite and child-centered. Even meaningful interim progress (e.g., completion of recovery programs) may not avert termination when followed by relapse and service disengagement late in the case.
Substance Use Disorder and “Response to Treatment”: This decision underscores that “has not responded to…treatment” under § 49‑4‑604(d)(1) can be satisfied despite prior program completions if the parent relapses and ceases engagement, indicating that treatment has not yet translated into sustained parental capacity.
No Obligation to Employ Less Restrictive Alternatives: Where “no reasonable likelihood” is shown and termination is necessary for the child’s welfare, circuit courts are not required to attempt guardianship or other intermediate dispositions. Kristin Y./R.J.M. continues to control.
Record-Building Matters: DHS’s contemporaneous documentation (reports and attached police report), admitted without objection, anchored the findings. For appellants, omission of critical transcripts limits the ability to challenge the circuit court’s factual determinations on appeal.
Guidance for Practitioners: Parents must maintain uninterrupted engagement with services and visitation; even a short period of non-engagement after relapse can be dispositive. Guardians and DHS should promptly document safety concerns and service non-compliance; courts should make clear, child-centered findings regarding welfare and permanency needs.

Complex Concepts Simplified

Abuse and Neglect Case: A civil proceeding where the state alleges that a child has been harmed or is at risk due to a parent’s conduct (here, substance abuse impairing parenting and unsafe home conditions).
Improvement Periods: Court-ordered windows of time—post-adjudicatory (after a parent is found to have abused/neglected) and post-dispositional—during which a parent must engage in services (treatment, drug testing, parenting classes, stable housing) to remedy the conditions.
“No Reasonable Likelihood…in the Near Future”: A statutory standard allowing termination when the parent’s issues are unlikely to be remedied soon enough to meet the child’s needs, considering the parent’s history and recent conduct (e.g., relapse and disengagement).
Less Restrictive Alternatives: Options short of termination (such as continued improvement periods or guardianship) that may be considered. Under Kristin Y./R.J.M., they are not required when “no reasonable likelihood” is established and termination is necessary for the child’s welfare.
Standard of Review: On appeal, factual findings are upheld unless clearly erroneous (deferential), while legal conclusions are reviewed anew (non-deferential). This framework favors affirmance when the record supports the circuit court’s findings.
Memorandum Decision (Rule 21): An appellate decision issued without oral argument when the case turns on settled law; typically concise and focused on application rather than announcing new doctrine.

Conclusion

In re K.M. and L.M. reinforces the consistent West Virginia rule: when a parent’s habitual drug use continues to impair parenting and the parent has not responded to treatment—evidenced here by relapse, eviction, and cessation of services and visitation after extended improvement periods—circuit courts may find there is no reasonable likelihood of substantial correction in the near future. Once that finding is made, and termination is deemed necessary for the child’s welfare, courts are not obliged to attempt less restrictive alternatives before terminating parental rights.

The Supreme Court’s affirmance—grounded in § 49‑4‑604(d)(1) and § 49‑4‑604(c)(6), and guided by Kristin Y./R.J.M. and Cecil T.—signals continuity, not novelty, in abuse and neglect jurisprudence: permanency, stability, and safety for children remain paramount, improvement periods are finite and performance-based, and relapse accompanied by disengagement late in a case can be decisive. For practitioners and parties alike, the decision underscores the imperative of sustained treatment engagement, consistent visitation, and thorough record development at every stage.