Substantial Compliance and Denial of Improvement Period Extensions in West Virginia Abuse and Neglect Law: Commentary on In re S.D.-1 and S.D.-2

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re S.D.-1 and S.D.-2, No. 24-652 (Nov. 4, 2025), affirms the termination of a father’s parental rights and clarifies–or more accurately, reinforces–two central principles of state abuse and neglect law:

An extension of an improvement period under West Virginia Code § 49-4-610(6) is conditioned on the parent’s substantial compliance with existing terms; sporadic or partial participation, especially where drug use continues, does not qualify.
Termination of parental rights may be ordered without resort to less restrictive alternatives where there is no reasonable likelihood the conditions of abuse or neglect can be substantially corrected in the near future, and termination is necessary for the child’s welfare, under § 49-4-604(c)(6).

This decision arises out of a chronic substance abuse situation coupled with profound medical and developmental needs of one child, and the clear, express opposition of the older child to reunification. The Court’s memorandum, while procedurally modest under Rule 21, is a pointed application of existing doctrine to a fact pattern that is increasingly common: parents with addiction issues attempting to navigate improvement periods while caring—or failing to care—for a medically fragile child.

II. Factual and Procedural Background

In November 2023, the West Virginia Department of Human Services (“DHS”) filed an abuse and neglect petition against the father (petitioner E.D.) and the children’s mother. The allegations were twofold:

Substance abuse: Then-fifteen-year-old S.D.-1 reported seeing drugs and drug paraphernalia in his parents’ possession. DHS alleged both parents used drugs to the detriment of their parenting abilities.
Medical and educational neglect: Neither child had seen a doctor or dentist in approximately five years. The younger child, then eight-year-old S.D.-2, was developmentally and physically disabled, nonverbal, and not enrolled in school.

At the January 2024 adjudicatory hearing, the father stipulated that he had:

Abused drugs to the detriment of his parenting abilities, and
Neglected the children’s medical and educational needs.

The circuit court adjudicated him as an abusing and neglecting parent. In March 2024, the court granted him a post-adjudicatory improvement period. Conditions included:

Maintaining sobriety;
Participation in drug treatment and therapy;
Engagement in parenting classes;
Obtaining employment; and
Submitting to regular drug screens.

By the September 2024 dispositional hearing, evidence showed that the father:

Missed numerous drug screens;
Tested positive for amphetamine, methamphetamine, and fentanyl during the improvement period;
Presented Suboxone (buprenorphine/naloxone) levels inconsistent with prescribed usage, suggesting misuse or diversion;
Missed nearly all of disabled child S.D.-2’s medical appointments; and
Was perceived by S.D.-1 as not sober and unable to care for his younger sibling.

The circuit court found an intentional pattern of missing drug screens on Fridays, Mondays, back-to-back days, and around holidays, with no credible explanation. The father attempted to explain inconsistent hair follicle drug test results by claiming slow hair growth, but the court found the fluctuating levels—specifically, methamphetamine levels nearly four times higher in August 2024 than in May 2024—indicative of continuing drug use.

The court also found that:

S.D.-2 required “complex, around-the-clock care” that the father did not demonstrate he could or would provide; and
S.D.-1 consistently expressed a desire not to be reunified with the parents and voiced doubts about their sobriety and ability to care for his younger sibling.

The circuit court concluded that the father failed to complete his improvement period, was unwilling or unable to meet the children’s needs, and that there was no reasonable likelihood the conditions of abuse and neglect could be substantially corrected in the near future. It denied his request for a three-month extension of the improvement period and terminated his parental rights, identifying adoption in the current placement as the permanency plan.

The father appealed, arguing:

The circuit court erred in denying an extension of his post-adjudicatory improvement period; and
Termination was not the least restrictive alternative.

III. Summary of the Supreme Court’s Decision

The Supreme Court of Appeals of West Virginia affirmed the October 8, 2024 order terminating the father’s parental rights. Applying the standard of review from In re Cecil T., the Court:

Held that the circuit court did not err in denying the requested extension of the improvement period because the father did not “substantially comply” with its terms, as required by West Virginia Code § 49-4-610(6).
Rejected the argument that termination was not the least restrictive alternative, reiterating the established principle that where there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected in the near future, and termination is necessary for the child’s welfare, termination may be ordered without resort to less restrictive alternatives, citing In re Kristin Y. and In re R.J.M..

The Court specifically endorsed the circuit court’s findings that:

The father continued abusing drugs throughout the case and did not follow through with the reasonable family case plan, triggering the statutory “no reasonable likelihood” provisions of § 49-4-604(d)(1) and (3).
Adoption was in the best interests of both children, particularly in light of nine-year-old S.D.-2’s need for intensive, round-the-clock care and the older child’s clearly expressed wishes against reunification.

IV. Detailed Analysis

A. Standard of Review: In re Cecil T.

The Court begins by reiterating the familiar standard from syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011):

Findings of fact by the circuit court are reviewed under a clearly erroneous standard; and
Conclusions of law are reviewed de novo.

This framework is crucial. In abuse and neglect appeals, parents often challenge the circuit court’s weighing of evidence concerning compliance and change in circumstances. By emphasizing clear error review for factual findings, the Supreme Court signals continued deference to trial judges’ first-hand assessment of credibility, patterns of conduct (such as missed screens), and interpretation of test results (such as hair follicle analyses).

In this case, the father faced an uphill battle: the trial court made detailed and specific findings based on multiple witnesses and objective test results. Absent a firmly and conclusively contradictory record, the Supreme Court would be disinclined to disturb those findings.

B. Statutory Framework

1. Improvement Periods – W. Va. Code § 49-4-610

Improvement periods are statutory devices that give abusing or neglecting parents a structured opportunity to remedy conditions and work toward reunification. Under § 49-4-610:

The court may grant post-adjudicatory improvement periods where a parent shows they are likely to fully participate and a suitable case plan is in place.
Extensions of improvement periods—at issue here—are limited and conditioned by § 49-4-610(6), which requires, among other things, that the parent has “substantially complied with the terms of the improvement period.”

Thus, an extension is not automatic or entitlement-based. It is a discretionary tool, triggered only when certain performance benchmarks are met.

2. Termination of Parental Rights – W. Va. Code § 49-4-604

Under § 49-4-604(c)(6), a circuit court may terminate parental rights when:

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 welfare of the child.

Subsection (d) defines when “no reasonable likelihood” exists. Two provisions are particularly relevant:

§ 49-4-604(d)(1): Where the parent is addicted to alcohol or drugs to such an extent that proper parenting skills are seriously impaired.
§ 49-4-604(d)(3): Where the parent has not responded to or followed through with a reasonable family case plan or other rehabilitative efforts.

When these conditions are met, the statute supports termination as a permissible—and often necessary—dispositional outcome.

C. Denial of Extension of the Post-Adjudicatory Improvement Period

1. The Legal Standard for Extensions

West Virginia Code § 49-4-610(6) conditions an extension of an improvement period on several factors, including:

Substantial compliance with existing terms; and
A showing that further extension is likely to result in correction of the underlying conditions.

The Court cites § 49-4-610(6) expressly to emphasize that the father’s failure to abide by the terms of his improvement period—especially as to sobriety and participation in medical care for his severely disabled child—precludes the extension he requested.

2. Factual Failures: Drug Use and Missed Screens

The circuit court’s findings, endorsed by the Supreme Court, underscore several key points:

Patterned noncompliance. The parents’ joint pattern of missing drug screens on Fridays, Mondays, consecutive days, and near holidays suggested an intentional effort to evade detection, not accidental or random noncompliance.
Inconsistent Suboxone levels. Irregular buprenorphine and naloxone levels in the father’s system raised doubts that he was taking prescribed Suboxone as directed. This undermined any claim of stable, medically managed recovery.
Positive drug tests. During the improvement period—the very time intended for rehabilitation—the father tested positive for amphetamine, methamphetamine, and fentanyl, indicating active and ongoing substance use.
Hair follicle evidence. The court rejected the father’s explanation that slow hair growth accounted for fluctuating levels of methamphetamine. Instead, it credited expert interpretation that rising levels from May to August 2024 (nearly fourfold) reflected continuing use, not residual presence.

These findings collectively show that the father was not merely struggling at the margins of compliance; he was actively continuing the very behavior—serious drug abuse—that justified the initial petition.

3. Medical Neglect of a Severely Disabled Child

The father also failed to attend nearly all medical appointments for S.D.-2, a nonverbal, developmentally and physically disabled child needing complex, continuous care. Given that participation in those appointments was a term of the improvement period, this was a significant form of noncompliance both:

Formally (a direct violation of the case plan), and
Substantively (evidence of inability or unwillingness to meet the child’s intensive needs).

Where a child requires high-level care, the parent’s consistent failure to attend medical appointments is a particularly powerful indicator that reunification might be contrary to the child’s welfare and unlikely to succeed.

4. Application of the Law to the Facts

Because § 49-4-610(6) requires substantial compliance as a prerequisite to granting an extension, the Court’s reasoning is straightforward:

The father repeatedly missed drug screens and participated in a patterned way suggesting avoidance.
He continued to abuse illegal substances during the improvement period.
He failed to meet critical obligations related to his disabled child’s healthcare.
Therefore, he did not substantially comply with the terms of his improvement period.

Accordingly, he was statutorily ineligible for an extension, and the circuit court’s refusal to grant one was not an abuse of discretion.

The Court buttresses this conclusion with citation to In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996), where it upheld the denial of an extension when the parent failed to comply with improvement period terms. The present case thus continues a consistent jurisprudential line: extensions are reserved for parents who can show meaningful, sustained engagement—not for those who persist in the conduct that caused removal.

D. Termination as a Permissible Disposition Without Lesser Alternatives

1. The “Least Restrictive Alternative” Argument

Parents frequently argue, as this father did, that termination is not the least restrictive alternative and that the court should consider guardianship, long-term foster care, or additional supervised visitation first.

The Court directly responds by reiterating the principle—grounded in statutory law and longstanding case law—that once the statutory criteria are met, termination may be chosen without intervening lesser alternatives.

2. Governing Precedent: In re Kristin Y. and In re R.J.M.

The Court quotes syllabus point 5 (in part) of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), itself quoting 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 under [West Virginia Code § 49-4-604(c)(6)] that conditions of neglect or abuse can be substantially corrected and when necessary for the welfare of the child.”

This doctrine decisively answers the least-restrictive-argument in many abuse and neglect cases: once the statutory “no reasonable likelihood” threshold is factually and legally satisfied, the court is not obligated to experiment with intermediate solutions that would prolong instability for the child.

3. Application of § 49-4-604(d)(1) and (3)

The Court affirms that:

The father was addicted to controlled substances to the extent that his parenting was seriously impaired (triggering § 49-4-604(d)(1)); and
He failed to respond to or follow through with the reasonable family case plan (§ 49-4-604(d)(3)).

These statutory provisions provide a clear basis to find that there was no reasonable likelihood that conditions could be substantially corrected in the near future. Combined with the children’s needs—particularly the disabled child’s need for stability and intense care— the Court concludes that termination was necessary for their welfare.

4. Best Interests: Special-Needs Child and Sibling’s Wishes

The Court also emphasizes:

The severe, ongoing needs of S.D.-2, who is nonverbal, has significant disabilities, and requires “around-the-clock, intensive care.”
The clear statements of S.D.-1, who repeatedly told the guardian ad litem, social worker, and kinship provider that:
- He did not wish to be reunified with his parents;
- He did not believe they were sober; and
- He believed they were unable to care properly for his younger sibling.

These findings go directly to the best interests analysis. They strongly support the conclusion that maintaining or attempting to restore the parental relationship would be harmful and destabilizing, and that adoption provides the highest degree of permanency and safety.

E. Precedents Cited and Their Influence

1. In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)

As noted above, Cecil T. provides the standard of review. Its importance here is twofold:

It reaffirms the deferential standard applied to factual findings in abuse and neglect cases, shielding circuit courts’ careful, detailed findings from appellate second-guessing.
It underscores de novo review for legal conclusions, allowing the Supreme Court to ensure that statutes such as §§ 49-4-610 and 49-4-604 are correctly interpreted and applied.

2. In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996)

Katie S. is directly invoked for the proposition that a circuit court does not abuse its discretion when it denies an extension of an improvement period where the parent has failed to comply with its terms.

By drawing on Katie S., the Court situates In re S.D.-1 and S.D.-2 within a stable line of cases that treat improvement periods as:

Conditional opportunities, not guaranteed rights; and
Dependent on demonstrable, meaningful engagement and behavior change, not mere intent or aspirational claims.

3. In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)

Kristin Y. is cited for the rule that termination may be ordered without resort to less restrictive alternatives once statutory conditions under § 49-4-604(c)(6) are met.

Its inclusion serves to:

Reinforce the primacy of the child’s welfare and permanency over continued experimentation with parental rehabilitation where prospects are poor; and
Confirm that the statutory “no reasonable likelihood” finding is dispositive in allowing, and often requiring, termination.

4. In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

R.J.M. is one of the foundational West Virginia termination cases. By quoting R.J.M. (via Kristin Y.), the Court signals that:

The father’s case is not exceptional; it falls squarely within long-established law.
The doctrine permitting termination without intermediate alternatives has deep roots, dating back more than four decades.

Thus, In re S.D.-1 and S.D.-2 does not innovate new doctrine; it consolidates and reapplies existing precedent in the context of ongoing parental substance abuse and the profound needs of a disabled child.

V. Clarification of Key Legal Concepts

1. Improvement Period

An “improvement period” is a court-approved window of time during which an abusing or neglecting parent is given a structured opportunity to correct the problems that led to state intervention. It is governed by a written case plan and may include:

Drug treatment and testing;
Counseling or therapy;
Parenting classes;
Stable housing and employment requirements;
Participation in the child’s educational and medical appointments.

Failure to comply with these terms, especially failure to maintain sobriety or to engage in treatment, strongly suggests that reunification is not viable.

2. “Substantial Compliance”

“Substantial compliance” under § 49-4-610(6) does not mean perfect compliance. It means meaningful, good-faith, and consistent adherence to the key requirements of the improvement period, such that extension is rationally likely to yield success.

In this case, ongoing drug use, patterned missed screens, and repeated failure to attend critical medical appointments for a severely disabled child fell far short of substantial compliance. The Court’s application underscores that:

Sporadic participation or partial adherence is insufficient where the core danger—serious substance abuse—remains intact.
Courts are not required to extend improvement periods based on promise or hope alone; there must be demonstrated behavior change.

3. “No Reasonable Likelihood” of Correction

The phrase “no reasonable likelihood that conditions of abuse or neglect can be substantially corrected in the near future” is a statutory threshold concept. It hinges on:

Past and present behavior—especially whether the parent has engaged in and benefitted from services; and
Current functional capacity—whether the parent is now able and willing to safely care for the child.

Here, positive tests for methamphetamine and fentanyl, evasive behavior around drug screens, and neglect of medical care demonstrated that the father had not corrected the core problems and was unlikely to do so soon.

4. “Least Restrictive Alternative” and Termination

In many areas of law, courts must consider the “least restrictive means” or “least restrictive alternative.” In child abuse and neglect, however, once the statutory standard in § 49-4-604(c)(6) is met (no reasonable likelihood of correction + necessity for the child’s welfare), termination may be directly ordered.

The “least restrictive” language is often invoked by parents, but West Virginia law—via R.J.M., Kristin Y., and cases such as this one—clarifies that:

The court is not required to adopt intermediate measures (e.g., guardianship, long-term foster care) where these would prolong instability or expose the child to continuing risk.
The overriding consideration is the child’s welfare and need for permanency, not the maximization of parental rights in the abstract.

5. “Best Interests of the Child”

The “best interests” standard is the backbone of child welfare law. It involves holistic consideration of:

Safety and freedom from harm;
Stability and permanency;
Emotional and developmental needs;
Medical and educational needs;
Where age-appropriate, the child’s own expressed wishes.

In In re S.D.-1 and S.D.-2, best interests analysis was heavily influenced by:

S.D.-2’s intensive, ongoing care needs and the father’s failure to engage in medical care; and
S.D.-1’s repeated, consistent opposition to reunification and his informed view that his parents were still using drugs and could not care for his sibling.

VI. Practical and Doctrinal Implications

1. For Parents and Their Counsel

Improvement periods are time-sensitive and performance-based. Failing to test, testing positive, or skipping critical appointments will almost certainly be interpreted as noncompliance and may foreclose extensions.
Patterns matter. Missing screens on days likely associated with drug use or detection avoidance (e.g., around weekends and holidays) may be viewed as deliberate evasion, not incidental noncompliance.
Special-needs children raise the stakes. When a child is medically fragile or developmentally disabled, courts will place extraordinary emphasis on the parent’s ability and willingness to engage fully in care.
Subjective explanations for test results must be medically credible. Claims about hair growth rates or medication anomalies must be supported by expert evidence to overcome adverse interpretations of lab results.

2. For DHS and Guardians ad Litem

The case illustrates the importance of detailed, documented evidence of noncompliance, including:
- Dates and patterns of missed drug screens;
- Specific results and trends in lab testing (urine, hair follicle);
- Attendance records for medical and therapy appointments; and
- Child statements and observed behavior regarding parental sobriety and caregiving capacity.
GALs should recognize that the older child’s informed wishes can be highly influential, especially when backed by explicit safety or caregiving concerns.

3. For Circuit Courts

This decision encourages circuit courts to be explicit and detailed in their findings on:
- Compliance with improvement period terms;
- Interpretation of drug test patterns and levels; and
- Engagement in the care of medically complex children.
Courts are reminded that they need not grant extensions where substantial compliance is lacking, even if the parent expresses a desire to do better in the future.
Once statutory findings under § 49-4-604(c)(6) and (d)(1), (3) are supported by the record, courts are fully authorized to order termination without intermediate dispositions.

4. The Special-Needs Context

A notable feature of this case is the presence of a nonverbal, developmentally and physically disabled child requiring constant care. This context amplifies several existing legal principles:

Heightened importance of reliability and stability. Where a child’s survival, health, or development depends on strict adherence to medical regimens and appointments, parental inconsistency is especially grave.
Lower tolerance for risk and delay. Courts are less likely to extend improvement periods or experiment with less restrictive alternatives if doing so jeopardizes medical continuity or safety.

Although the decision is a memorandum and therefore not a citable syllabus-point opinion, it illustrates how deeply courts factor special-needs circumstances into both compliance analysis and ultimate disposition.

VII. Conclusion

In re S.D.-1 and S.D.-2 is an application, rather than a reconfiguration, of West Virginia abuse and neglect jurisprudence. Its significance lies in its clear and concrete reinforcement of existing rules:

Improvement period extensions require substantial compliance. Continued drug use, intentional avoidance of screens, and failure to participate in critical medical care for a child undercut any claim to an extension under § 49-4-610(6).
Termination need not be preceded by lesser alternatives when there is no reasonable likelihood that the conditions of abuse or neglect will be corrected in the near future and when termination is necessary to protect the child’s welfare, per § 49-4-604(c)(6), (d)(1), and (3), and the enduring principles of R.J.M. and Kristin Y..
Best interests and permanency dominate the analysis, particularly where a child is medically fragile and another child clearly expresses a reasoned opposition to reunification.

The decision underscores that in West Virginia, while parents are afforded meaningful opportunities to rehabilitate, those opportunities are bounded by time, performance, and, above all, the compelling and immediate needs of the child. Where substantial compliance and realistic prospects of change are lacking, the law directs courts toward timely termination and permanency through adoption.