Relapse and Non‑Participation During Improvement Periods Establish “No Reasonable Likelihood” and Permit Termination Without Less Restrictive Alternatives: Commentary on In re K.M. and L.M.

Introduction

In In re K.M. and L.M., No. 25-90 (W. Va. Oct. 14, 2025), the Supreme Court of Appeals of West Virginia affirmed a circuit court’s termination of a mother’s parental, custodial, and guardianship rights following her relapse and cessation of services during post-adjudicatory and post-dispositional improvement periods. The Department of Human Services (DHS) initiated the case in May 2023 after reports of intoxication in the children’s presence and discovery of drug paraphernalia accessible to the children. The mother, S.S., stipulated to abuse and neglect and was granted successive improvement periods with extensive services. After completing two recovery programs, she overdosed on heroin, disengaged from DHS services, and stopped visiting the children. The circuit court concluded there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and that termination was necessary for the children’s welfare. On appeal, the mother challenged that conclusion and argued the court should have used less restrictive alternatives.

The Supreme Court issued a memorandum decision under Rule 21, determining oral argument was unnecessary and affirming the termination order. The decision clarifies the practical application of West Virginia Code § 49-4-604(c)(6) and (d)(1): a parent’s relapse coupled with non-participation in services during improvement periods can establish “no reasonable likelihood” of correction, obviating the need for less restrictive alternatives.

Summary of the Opinion

Applying the mixed standard of review outlined in Syl. Pt. 1, In re Cecil T., the Court reviewed the circuit court’s factual findings for clear error and legal conclusions de novo. It held:

The record supported the circuit court’s finding of “no reasonable likelihood” that the conditions of abuse and neglect could be substantially corrected in the near future. The Court cited the DHS written reports admitted without objection documenting the mother’s July 31, 2024 heroin overdose, eviction, and discontinuation of services and visitation.
Under West Virginia Code § 49-4-604(d)(1), where a parent has habitually abused or is addicted to drugs to the extent parenting is seriously impaired and has not responded to treatment that could improve parental capacity, a “no reasonable likelihood” finding is appropriate.
Because the circuit court also found termination necessary for the children’s welfare—a finding unchallenged on appeal—termination of parental, custodial, and guardianship rights was authorized by § 49-4-604(c)(6).
Per Syl. Pt. 5, In re Kristin Y. (quoting Syl. Pt. 2, In re R.J.M.), termination may be employed without intervening less restrictive alternatives when there is no reasonable likelihood of substantial correction. The mother’s argument for a less restrictive approach therefore failed.

The Supreme Court affirmed the January 8, 2025 termination order.

Analysis

Precedents and Authorities Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 1) — Establishes the appellate standard of review in abuse and neglect appeals: findings of fact are reviewed for clear error; legal conclusions de novo. This calibrated deference framed the Court’s acceptance of the circuit court’s on-the-ground assessment of the mother’s progress, relapse, and disengagement.
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) — Confirms termination can proceed “without the use of intervening less restrictive alternatives” once the court finds no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected. The Court relied on this to reject the mother’s plea for a less restrictive alternative.
West Virginia Code § 49-4-604(c)(6) and (d)(1) — Subsection (c)(6) authorizes termination upon findings that (i) there is no reasonable likelihood of substantial correction in the near future and (ii) termination is necessary for the child’s welfare. Subsection (d)(1) identifies when “no reasonable likelihood” is present: where a parent habitually abuses or is addicted to drugs to the extent parenting is seriously impaired and has not responded to treatment that could improve capacity. The Court connected the mother’s overdose and cessation of services to the statutory definition.
West Virginia Rule of Appellate Procedure 21 — The Court proceeded by memorandum decision without oral argument, signaling that the case was resolved by settled law applied to the record.

Legal Reasoning and Application

The Court’s reasoning moved in three steps: (1) identifying the governing standard and statutory framework; (2) measuring the record against that framework; and (3) addressing the mother’s call for less restrictive alternatives.

Governing standard and framework. Under Cecil T., the appellate court defers to circuit court fact-finding unless clearly erroneous. The dispositive statutory tests were § 49-4-604(d)(1) (defining “no reasonable likelihood”) and § 49-4-604(c)(6) (authorizing termination upon “no reasonable likelihood” plus necessity for the child’s welfare). Kristin Y. and R.J.M. further establish that once “no reasonable likelihood” is found, the circuit court need not experiment with less restrictive alternatives.
Record-to-standard fit. The record showed both early engagement and later regress:
- The mother stipulated at adjudication that her abuse of lorazepam and methadone impaired her parenting. She received and initially participated in extensive services and completed two recovery programs by April 2024.
- By July 2024, providers expressed concern about her independent caregiving ability. Critically, a DHS report (admitted without objection) documented a heroin overdose on July 31, 2024, eviction, cessation of communication with DHS, and non-participation in services and visitation thereafter.
- At the October 2024 dispositional hearing, DHS reported her late-stage reentry into treatment and desire to reunify. The circuit court found she was “out of time,” not “any closer” to resolving her drug problem despite extensive services, and had not participated in services since the overdose.
These facts supported the circuit court’s finding that the mother had not “responded to treatment which could have improved [her] capacity for adequate parental functioning,” see § 49-4-604(d)(1), given her relapse and subsequent disengagement during active improvement periods. Her late reentry into a program did not negate the demonstrated pattern of instability and non-participation. The circuit court also found termination necessary for the children’s welfare, emphasizing their need for “permanency, stability, and safety,” a finding not challenged on appeal.
Less restrictive alternatives. With the statutory “no reasonable likelihood” determination and welfare finding in hand, the Court invoked Kristin Y. and R.J.M. to hold that additional, less restrictive dispositions were not required. The mother’s argument for an alternative disposition therefore failed as a matter of law.

Evidence and Procedural Posture

Two evidentiary points supported affirmance:

DHS written reports and police report. The circuit court admitted DHS reports (including an attached police report) without objection chronicling the July 31 overdose, eviction, and cessation of services and visitation. The Supreme Court expressly relied on these written submissions as sufficient evidence supporting the circuit court’s factual findings.
Appellate record. The mother did not include the transcript of the dispositional hearing in the appendix. The Supreme Court resolved the appeal on the existing written record and the circuit court’s explicit findings, concluding those materials sufficed to sustain the termination order.

Impact and Practical Implications

Although rendered as a memorandum decision, the Court’s application of § 49-4-604(c)(6) and (d)(1) has clear practical resonance for abuse and neglect cases involving substance use disorder:

Relapse plus disengagement during improvement periods can be dispositive. Even after early program completion, a subsequent overdose and interruption of services and visitation may demonstrate that the parent has not “responded to treatment,” supporting a “no reasonable likelihood” finding.
Timing and permanency matter. The circuit court’s “out of time” observation reflects the statutory emphasis on the child’s need for timely permanency. Late-stage reentry into treatment, without sustained engagement, may not outweigh earlier relapse and prolonged non-participation when assessing near-term prospects for safe reunification.
Less restrictive alternatives are not required once the statutory predicate is met. Kristin Y. and R.J.M. continue to guide dispositional choices: when “no reasonable likelihood” is supported by the record and termination is necessary for the child’s welfare, courts need not pursue intermediate options.
Documented service history and reports carry weight. DHS reports, particularly when admitted without objection and corroborated (as by a police report here), can sustain critical factual findings on appeal.
Appellate presentation is record-bound. The absence of a dispositional transcript limited the mother’s ability to contest the circuit court’s factual determinations. Practitioners should ensure the full evidentiary record is furnished on appeal.

Complex Concepts Simplified

Improvement Periods (Post-Adjudicatory and Post-Dispositional): Court-ordered phases allowing a parent to remedy conditions that led to abuse or neglect. Post-adjudicatory follows the court’s finding that abuse/neglect occurred; post-dispositional may follow further into the case. Both require active participation in services (e.g., treatment, drug screens, parenting education) and measurable progress.
“No Reasonable Likelihood” of Correction: A statutory conclusion that, based on the parent’s conduct and response to services, the issues cannot be substantially corrected in the near future. For substance abuse, relapse and non-participation can show the parent has not responded to treatment in a way that improves parenting capacity.
Less Restrictive Alternatives: Options short of terminating parental rights (e.g., further improvement periods, restricted visitation, or other custodial arrangements). West Virginia law does not require these once “no reasonable likelihood” is established and termination is necessary for the child’s welfare.
Termination of Parental, Custodial, and Guardianship Rights: A final disposition ending the legal parent-child relationship and associated rights and duties. It is authorized under § 49-4-604(c)(6) when the statutory criteria are met and serves the child’s best interests, including permanency and safety.
Standard of Review: On appeal, factual findings are accepted unless clearly erroneous; legal conclusions are reviewed anew. This means appellate courts rarely second-guess trial courts’ credibility and weight-of-evidence judgments when supported by the record.

Conclusion

In re K.M. and L.M. reinforces a consistent West Virginia child welfare principle: sustained, reliable parental engagement and demonstrable response to treatment during improvement periods are crucial. When a parent relapses and disengages from services and visitation after receiving extensive supports, a circuit court may find there is no reasonable likelihood of substantial correction in the near future under § 49-4-604(d)(1). Once that finding is made and termination is deemed necessary for the child’s welfare, § 49-4-604(c)(6) authorizes termination without resort to less restrictive alternatives, per Kristin Y. and R.J.M.

The Supreme Court’s memorandum decision—affirming on a record built primarily from DHS reports admitted without objection—highlights the centrality of timely permanency and the weight appellate courts accord to circuit courts’ grounded assessments in abuse and neglect cases. The takeaway for practitioners and parties is clear: progress must be consistent and durable, not episodic; engagement must be continuous; and the child’s need for stability and safety governs the pace and outcome of the case.

Case: In re K.M. and L.M., No. 25-90 (W. Va. Oct. 14, 2025) — Supreme Court of Appeals of West Virginia; memorandum decision affirming termination of parental, custodial, and guardianship rights.