Termination Without Less Restrictive Alternatives for Improvement-Period Noncompliance and Alcohol Addiction; Post-Termination Visitation Requires an Affirmative Best-Interest Showing

1. Introduction

In re T.D. and W.D. arises from a Wood County abuse and neglect proceeding in which the West Virginia Department of Human Services (“DHS”) alleged that the father, D.D. (“Petitioner Father”), failed to properly supervise his children, allowing them to engage in inappropriate sexual behaviors with each other. The father stipulated to the supervision failure at adjudication and received extensive remedial opportunities through a post-adjudicatory improvement period and later extensions and a post-dispositional improvement period.

The case reached the Supreme Court of Appeals after the circuit court terminated the father’s parental rights and denied his request for post-termination visitation. The appeal presented two recurring issues in West Virginia child welfare law:

• Dispositional choice: whether the circuit court erred by terminating parental rights without employing “less restrictive alternatives.”
• Continuing contact: whether the circuit court erred by denying post-termination visitation, particularly given that one child (T.D., age fifteen) reportedly wished to return home.

2. Summary of the Opinion

The Court affirmed the April 21, 2025 dispositional order. It held that the circuit court did not err in terminating the father’s parental rights because the record supported findings that (1) he failed to meaningfully participate in services over approximately nineteen months, (2) he repeatedly missed drug and alcohol screens, (3) he never began therapy, and (4) he failed to adequately address alcoholism—facts supporting the statutory determination that there was “no reasonable likelihood” the conditions of abuse and neglect could be substantially corrected in the near future under West Virginia Code § 49-4-604(c)(6).

The Court also affirmed the denial of post-termination visitation. Applying the best-interest framework for continued contact after termination, it concluded the circuit court considered the child’s wishes but found no showing that visitation was in the children’s best interests.

3. Analysis

3.1. Precedents Cited

Although issued as a memorandum decision, the Court’s reasoning is structured around well-established syllabus-point law. The opinion’s citations show how West Virginia’s abuse-and-neglect disposition framework operates when improvement periods do not result in measurable change.

• Standard of review — In re Cecil T.
  The Court invoked Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), for the familiar bifurcated review standard: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. This framing matters because the father’s appeal largely challenged the circuit court’s dispositional choices (often reviewed deferentially when anchored in supported factual findings).

• Termination without less restrictive alternatives — In re Kristin Y. and In re R.J.M.
  The Court relied on Syl. Pt. 5, in part, 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)). This line of authority supplies the doctrinal answer to the father’s “less restrictive alternatives” argument: termination may be ordered “without the use of intervening less restrictive alternatives” when two conditions are met—(1) no reasonable likelihood the conditions can be substantially corrected, and (2) termination is necessary for the child’s welfare.

  Functionally, this precedent limits a common appellate strategy: arguing that courts must exhaust intermediate dispositions (e.g., continued improvement periods, guardianship, or less drastic custodial arrangements) even after a supported “no reasonable likelihood” finding.

• Nonparticipation in improvement periods as a termination basis — In re K. L.
  Citing In re K. L., 247 W. Va. 657, 666-67, 885 S.E.2d 595, 604-05 (2022), the Court emphasized that failure to participate in an improvement period is a “statutorily-recognized basis” frequently supporting affirmance of termination. In the present case, the father’s missed screens, lack of therapy, lack of contact with DHS, and failure to address alcoholism were treated not as minor compliance defects, but as evidence that the improvement period’s rehabilitative purpose had failed.

• Post-termination visitation framework — In re Christina L. and In re Daniel D.
  The Court applied Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002), which incorporates Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). The framework is permissive—not mandatory: a circuit court may consider continued contact post-termination, but only if evidence shows it would be non-detrimental and in the child’s best interest. The Court used these precedents to reject the father’s argument that the child’s stated preference controlled the outcome.

  The opinion also notes an intervening procedural development: after the circuit court’s order, Rule 15(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings was amended to more clearly articulate and adopt appropriate standards for post-termination visitation. The Court nevertheless applied the standards in effect at the time of the circuit court’s decision.

3.2. Legal Reasoning

The Court’s affirmance rests on the interaction between statutory grounds for termination and evidentiary proof of non-correction.

(a) The “no reasonable likelihood” finding was anchored in statutory criteria.
Under W. Va. Code § 49-4-604(c)(6), termination is authorized upon findings that (1) there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected in the near future, and (2) termination is necessary for the child’s welfare. The Court then tied the circuit court’s specific factual findings to W. Va. Code § 49-4-604(d)(1) & (3), which describe circumstances establishing “no reasonable likelihood,” including:

• Alcohol addiction impairing parenting, coupled with failure to respond to or follow through with recommended treatment; and
• Failure to respond to or follow through with a reasonable family case plan.

(b) “Services provided” did not substitute for “progress achieved.”
The opinion emphasizes duration and opportunity—approximately nineteen months of services and multiple improvement-period phases—yet the decisive factor was the father’s lack of meaningful participation and progress. The record the Court highlighted included missed screens (both before and after a key review hearing), a lab-confirmed positive alcohol marker (ethyl glucuronide), failure to start therapy, failure to address alcoholism despite recommendations (including long-term inpatient rehabilitation), and disengagement from DHS (no contact for months and failure to report unemployment).

(c) Less restrictive alternatives were not required once statutory termination findings were supported.
By invoking In re Kristin Y./In re R.J.M., the Court treated the father’s “less restrictive alternatives” argument as legally foreclosed once the “no reasonable likelihood” and “necessity for welfare” findings were sustained. In other words, intermediate dispositions do not operate as a checklist a circuit court must exhaust after the statutory threshold for termination is met.

(d) Post-termination visitation requires evidence, not merely a child’s preference.
The Court applied the In re Daniel D./In re Christina L. factors—emotional bond, mature child’s wishes, and whether contact would be detrimental—while emphasizing the overarching requirement: the evidence must indicate visitation would be in the child’s best interest. The Court rejected the claim that T.D.’s wishes were ignored, noting the circuit court was informed of them and considered them, but found no showing that visitation served the children’s best interests.

3.3. Impact

1) Reinforcement of termination doctrine where improvement periods fail.
The decision reinforces that extended service provision does not itself bar termination; rather, persistent noncompliance—especially around substance-abuse monitoring and treatment—supports a “no reasonable likelihood” finding. Practically, it signals that repeated missed screens and failure to engage in recommended treatment will be treated as substantive evidence of non-correction, not procedural missteps.

2) Clarification of the “less restrictive alternatives” argument’s limits.
The opinion strengthens predictability: once the statutory findings under § 49-4-604(c)(6) are supported, a circuit court is not compelled to attempt lesser dispositions. Future litigants should expect appellate courts to treat “less restrictive alternatives” as subordinate to the core statutory inquiry—correctability in the near future and the child’s welfare.

3) Post-termination visitation remains exceptional and evidence-driven.
The decision underscores that post-termination visitation is not an entitlement and not automatically triggered by a child’s preference. Parties seeking such visitation must build an evidentiary record showing non-detriment and best interest (for example, through therapeutic recommendations, evidence of a safe and stable bond, and concrete safeguards).

4) Anticipated interaction with amended Rule 15(b).
While the Court applied pre-amendment standards, its note about Rule 15(b) signals that future post-termination visitation litigation will likely be channeled into a clearer procedural and substantive framework. The core principle remains: the best-interest showing is paramount.

4. Complex Concepts Simplified

• Improvement period (post-adjudicatory / post-dispositional): A court-ordered window in which a parent must complete services (e.g., therapy, parenting education, substance screens) designed to correct the conditions leading to the case. Nonparticipation can itself become a basis for termination.
• “No reasonable likelihood … can be substantially corrected in the near future”: A statutory conclusion drawn from facts showing the parent is not likely to fix the core problems soon enough for the child’s needs. It is not “no possibility,” but a realistic, evidence-based judgment.
• Less restrictive alternatives: Dispositions short of termination (such as guardianship, continued custody arrangements, or additional improvement time). West Virginia law allows termination without these alternatives when the statutory termination findings are made.
• Post-termination visitation: Continued contact after parental rights are terminated. It is discretionary and depends on evidence that it is in the child’s best interest and not detrimental; a child’s preference is relevant but not controlling.
• Ethyl glucuronide (EtG): A laboratory marker indicating recent alcohol consumption. The opinion treated a lab-confirmed EtG positive as meaningful evidence within the broader noncompliance picture.
• Clear error vs. de novo review: “Clear error” means an appellate court defers to the trial court’s factual findings unless they are plainly wrong; “de novo” means legal questions are reviewed fresh. This framework often makes factual, record-supported dispositional rulings difficult to overturn.

5. Conclusion

In re T.D. and W.D. is a straightforward but consequential reaffirmation of West Virginia abuse-and-neglect disposition principles: when a parent, despite lengthy services, fails to meaningfully participate in an improvement period—particularly where untreated alcohol addiction and repeated missed screens persist—a circuit court may terminate parental rights under W. Va. Code § 49-4-604(c)(6) without first employing less restrictive alternatives. The decision also reiterates that post-termination visitation is exceptional and requires an affirmative evidentiary showing that continued contact is in the child’s best interest; a mature child’s wishes must be considered, but they do not override the best-interest determination.