Termination of Guardianship Without Less Restrictive Alternatives When No Reasonable Likelihood of Correction Exists

1. Introduction

Case: In re J.G. and M.A. (Supreme Court of Appeals of West Virginia, June 1, 2026).
Parties: Petitioner D.W. (grandmother and legal guardian) appealed the Circuit Court of Greenbrier County’s order terminating her guardianship rights to two children, J.G. and M.A. The West Virginia Department of Human Services (DHS) prosecuted the abuse-and-neglect case; a guardian ad litem represented the children.

Background: DHS alleged neglect based primarily on lack of supervision. The record described J.G. (age eleven at filing) roaming unsupervised for hours, involvement with weapons and theft, school discipline issues, and community concern that he was hungry and wandering as winter approached. M.A. (age five) was allegedly seen running down the street alone and frequently left unsupervised while the guardian slept.

Key issue on appeal: Whether the circuit court erred by terminating D.W.’s guardianship rights rather than adopting a less restrictive alternative at disposition.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed the termination order in a memorandum decision. Applying the abuse-and-neglect appellate standards of review, the Court held that the circuit court did not err in finding (1) no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future and (2) termination was necessary for the children’s welfare.

The Court rejected the argument that the circuit court was required to impose a less restrictive alternative before terminating guardianship rights, citing West Virginia precedent permitting termination without intermediate dispositions when the statutory “no reasonable likelihood” finding is made.

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 governing standards of appellate review in abuse-and-neglect cases: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. This framing is important because it underscores the deference given to the circuit court’s credibility determinations and weighing of evidence at disposition—particularly regarding compliance with services and prognosis for change.
  • Syl. Pt. 5, 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 the use of intervening less restrictive alternatives” when there is “no reasonable likelihood” that conditions of neglect or abuse can be substantially corrected.
    Role in this decision: This was the decisive authority against the petitioner’s central claim. The Court treated the question as a settled legal proposition: once the statutory/precedential threshold is met, the circuit court is not required to attempt step-down options (e.g., extended improvement periods, guardianship modifications, or other intermediate placements) before terminating rights.
  • 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.”
    Role in this decision: The Court used this principle to support the circuit court’s determination that D.W.’s failure to accept responsibility (and her attribution of the case to J.G. “wouldn’t listen” while maintaining her parenting was unchanged) undermined any realistic prospect of correction. The cited cases function here as a doctrinal bridge: non-acknowledgment is not merely a character critique; it is evidence relevant to prognosis and the feasibility of remediation within a child-centered timeframe.

B. Legal Reasoning

1) Statutory framework and the “no reasonable likelihood” finding
The Court relied on West Virginia Code § 49-4-604(d)(3), which defines one circumstance establishing “no reasonable likelihood” of substantial correction: when an abusing parent or guardian has “not responded to or followed through with a reasonable family case plan or other rehabilitative efforts” designed to reduce or prevent abuse or neglect.

Evidence supporting nonresponse/non-follow-through: The dispositive record evidence included:

  • Failure to submit to a large portion of random screening (missed 45 of 65 drug screens).
  • Positive screens for benzodiazepines (without indicating a prescription) and a positive for oxycodone in March 2025.
  • Therapy engagement only beginning one week before disposition, despite the improvement period terms requiring treatment participation.
  • Testimony indicating avoidance of psychological issues and poor prognosis for sustained treatment engagement.
  • Inconsistent participation in supervised visitation, and later the children’s refusal of visitation.
  • A May 2025 call that escalated into an argument and included a threat to remove the children from the foster home, upsetting both children.
  • Petitioner’s testimony minimizing the underlying neglect concerns and asserting her parenting had not changed since filing.

Together, these facts supported the circuit court’s conclusion that services had not produced meaningful change and that further time or lesser dispositions were unlikely to correct the core safety deficits—especially supervision, stability, and responsiveness to treatment.

2) Termination as a permissible disposition without lesser alternatives
Having affirmed the “no reasonable likelihood” finding, the Court applied West Virginia Code § 49-4-604(c)(6), which authorizes termination of “parental, custodial and guardianship rights” when (a) there is no reasonable likelihood conditions can be substantially corrected in the near future and (b) termination is necessary for the welfare of the child.

The petitioner’s argument for a “less restrictive alternative” failed because In re Kristin Y. (quoting In re R.J.M.) establishes that intermediate options are not mandatory once the statutory threshold is met. The Court also clarified that, although D.W. was a guardian (not a biological parent), the same dispositional standards under § 49-4-604 apply to termination of guardianship rights in an abuse-and-neglect context.

3) Child welfare and permanency considerations
The circuit court found termination “necessary for the welfare of the children,” and the Supreme Court did not disturb that finding. Notably, the record contained evidence of emotional harm risk from continued contact (children refusing visits; distress after the May 2025 call). The opinion also noted that the permanency plan was adoption in the current foster placement, signaling the system’s movement toward stability after prolonged proceedings.

C. Impact

1) Reinforcement that guardians are held to the same rehabilitative-and-safety benchmarks as parents
The decision underscores that guardianship status does not soften the statutory requirements at disposition. When a guardian is adjudicated for neglect and fails to follow through with a case plan, termination of guardianship may proceed under the same “no reasonable likelihood” and “necessary for welfare” analysis used for parental terminations.

2) Litigation focus: less restrictive alternatives vs. statutory predicates
Practically, the opinion channels future appellate arguments away from “the court should have tried something less restrictive” and toward contesting the underlying predicates: (a) whether the case plan was reasonable, (b) whether the respondent truly failed to respond or follow through, and (c) whether conditions can be substantially corrected within a reasonable time from the child’s perspective.

3) Treatment engagement and accountability as dispositive factors
By invoking In re Timber M. and In re Charity H., the Court signals that acknowledgment and timely engagement in services are not formalities. Late-start therapy (one week before disposition) and persistent noncompliance (missed screens, inconsistent participation) can support a finding that correction is unlikely—especially when paired with expert testimony describing poor prognosis and avoidance.

4. Complex Concepts Simplified

  • Adjudication vs. disposition: Adjudication determines whether abuse/neglect occurred (here, D.W. stipulated to neglect). Disposition determines the remedy (services, placement, termination, etc.).
  • Improvement period: A court-supervised opportunity for a parent/guardian to complete services (therapy, parenting classes, screenings, visitation rules) to correct the problems that brought the case to court.
  • “No reasonable likelihood … can be substantially corrected”: A legal finding that, based on evidence (often including service noncompliance, failed treatment engagement, expert prognosis), the problems are not likely to be fixed soon enough to keep the child safe and stable.
  • Less restrictive alternative: A disposition short of termination (e.g., continued improvement period, alternative custody or guardianship arrangements). Under In re Kristin Y., courts do not have to use these alternatives if the “no reasonable likelihood” finding is made and termination is necessary for the child.
  • Clear error review: On appeal, factual findings stand unless the appellate court is firmly convinced a mistake was made. This makes the circuit court’s credibility calls and factfinding at disposition difficult to overturn.
  • MDT meetings: Multidisciplinary Team meetings where professionals and parties coordinate services, visitation, and permanency planning.

5. Conclusion

In re J.G. and M.A. reaffirms a central West Virginia abuse-and-neglect principle: when a circuit court finds no reasonable likelihood that neglect conditions can be substantially corrected in the near future—and termination is necessary for the child’s welfare—termination may be ordered without first attempting less restrictive alternatives. The decision also emphasizes that guardians, like parents, must timely and meaningfully engage in case-plan services and acknowledge the underlying problems; otherwise, the law prioritizes permanency and protection for the children.