Service Compliance ≠ Parental Fitness: West Virginia Supreme Court Re-affirms Termination Standard in In re K.S. and K.K-1 (2025)

Introduction

In re K.S. and K.K-1, No. 24-439 (July 30, 2025), marks a significant clarification by the Supreme Court of Appeals of West Virginia concerning the weight to be given to a parent’s “technical” compliance with remedial services when deciding whether termination of parental rights is the least restrictive alternative under W. Va. Code § 49-4-604.

The petitioner-mother (K.K-2) appealed the Kanawha County Circuit Court’s order terminating her parental rights to her two children—K.S. (one year old) and K.K-1 (two years old)—after K.S. nearly died from fentanyl ingestion in a hotel room. The appeal turned on whether the circuit court erred by concluding that no less drastic alternative to termination existed, even though the children were already in a stable kinship placement and the mother had complied with services.

Key issues before the Supreme Court were:

Whether “compliance” alone triggers a duty to explore lesser restrictions (such as guardianship or continued improvement periods);
The extent to which a parent must acknowledge abuse/neglect for services to be meaningful; and
How aggravated circumstances—here, near-fatal fentanyl exposure—affect disposition choices.

Summary of the Judgment

The Court summarily affirmed the circuit court by memorandum decision, holding:

The mother’s partial cooperation and service participation did not outweigh evidence that she minimized the danger, delayed medical care, and continued relationships with dangerous individuals.
Under W. Va. Code § 49-4-604(c)(6) and syllabus points from In re R.J.M. and In re B.H., termination is proper whenever there is no reasonable likelihood conditions can be remedied in the near future and termination furthers the children’s best interests—even where a kinship placement already provides permanency.
Courts are not required to exhaust every speculative possibility of improvement, especially for children under three, when abuse involves aggravated circumstances such as exposure to a lethal controlled substance.

Analysis

A. Precedents Cited

In re Cecil T., 228 W. Va. 89 (2011) – Sets the appellate standard of review (clearly erroneous for facts; de novo for law).
In re B.H., 233 W. Va. 57 (2014) – Reaffirms that the controlling standard in disposition is the child’s best interests.
In re R.J.M., 164 W. Va. 496 (1980) – Authorizes immediate termination without less restrictive alternatives if statutory criteria in § 49-4-604(c)(6) are met.
In re Timber M., 231 W. Va. 44 (2013) – Emphasizes parental acknowledgment of problems as a prerequisite to successful remediation.

These authorities collectively guided the Court to affirm termination despite the mother’s service “compliance.” Particularly, R.J.M. provides the doctrinal engine: once aggravated circumstances and no reasonable likelihood findings are made, termination is not just permissible—it is usually compelled.

B. Legal Reasoning

Finding of Aggravated Circumstance. The circuit court labeled the fentanyl incident and delayed medical care an aggravated circumstance. That classification short-circuits the statutory preference for improvement periods under § 49-4-602.
Lack of Insight = Uncorrectable Conditions. Relying on the psychological evaluation and CPS testimony, both courts held the mother minimized her role, lied to protect herself, and kept dangerous company. Under Timber M., absence of insight forecloses meaningful improvement.
Best Interests Trump Service Box-Checking. The Court reiterated that mere attendance or passing drug screens does not create a presumptive right to custody. The decisive question is current parental fitness measured against the children’s safety and developmental needs.
Youth of the Children. Citing syllabus pt. 1 of R.J.M., the Court underscored that toddlers deserve expedited permanency and cannot wait for speculative rehabilitation.

C. Impact

The decision reinforces—and arguably expands—West Virginia precedent by expressly stating that:

“Compliance” without acknowledgment is insufficient to preclude termination;
A stable kinship placement does not automatically transform termination into a “more restrictive” option; and
Aggravated circumstances involving opioid exposure will almost invariably justify immediate termination unless the parent can demonstrate extraordinary change.

Future litigants should expect closer scrutiny of a parent’s attitudinal change rather than checklist compliance, especially in substance-abuse-driven neglect cases. Practitioners should also counsel clients that continuing associations with dangerous persons—even absent new criminal charges—may independently support termination findings.

Complex Concepts Simplified

Least Restrictive Alternative (LRA): In child-welfare cases, courts must choose the option that best protects children while intruding as little as possible on parental rights. However, R.J.M. teaches that if statutory factors justify termination, exploring further LRAs is unnecessary.
No Reasonable Likelihood of Correction: A statutory term meaning the parent’s problems (e.g., substance abuse, judgment deficits) cannot be fixed in the near future (generally viewed as six-twelve months).
Aggravated Circumstances: Serious facts—like chronic abuse, abandonment, or, here, near-fatal drug exposure—that allow the state to bypass improvement periods.
Kinship Placement vs. Adoption: Kinship care provides temporary custody to relatives; adoption severs parental rights entirely. The decision clarifies that kinship placement alone is not a lesser alternative if parental unfitness persists.

Conclusion

In re K.S. and K.K-1 fortifies West Virginia’s child-protection jurisprudence by declaring that: (1) parental service compliance is merely one datapoint; (2) acknowledgment of wrongdoing and demonstrable lifestyle change are indispensable; and (3) where toddlers endure aggravated harm, courts need not experiment with intermediate remedies.

The ruling thus stands as a cautionary precedent: parents facing abuse/neglect petitions must combine service participation with genuine insight and proactive risk elimination, or risk irrevocable termination—even when relatives stand ready to provide care.