Termination Without Less Restrictive Alternatives When a Parent’s Denial Makes Abuse and Neglect “Untreatable”

Introduction

In re B.E., C.E., and S.E. (Supreme Court of Appeals of West Virginia, issued June 1, 2026) is a memorandum decision affirming the Circuit Court of Taylor County’s termination of a father’s parental rights after a multi-stage abuse and neglect case involving (1) domestic violence in the children’s presence, (2) repeated supervision failures leading to a child’s “elopement” from the home, and (3) later substance-abuse concerns supported by drug screens and the father’s refusal of treatment services.

The appeal framed a familiar dispositional question: whether the circuit court was required to employ a “least restrictive alternative” rather than termination. The Supreme Court rejected that argument, emphasizing that termination may be ordered without intervening alternatives when there is “no reasonable likelihood” the conditions can be corrected, particularly where the parent refuses to acknowledge the problems, declines services, and the children’s safety remains threatened.

Summary of the Opinion

The Court affirmed termination. It held that the evidence supported the circuit court’s findings that:

  • the father continued to fail to supervise the children even after improvement periods and reunification (including a post-reunification elopement incident);
  • the father repeatedly tested positive for marijuana and once for methamphetamine;
  • he denied drug use, declined substance-abuse services, and failed to participate in required domestic-violence or couples’ therapy;
  • he failed to acknowledge the abusive/neglectful conditions, rendering them “untreatable,” and therefore not correctable within a reasonable time;
  • termination served the children’s best interests.

Applying the abuse-and-neglect standard of review and West Virginia Code § 49-4-604(d), the Court concluded the circuit court did not err by terminating parental rights rather than selecting a less restrictive disposition.

Analysis

Precedents Cited

  • Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
    The Court invoked this syllabus point for the governing appellate standard: findings of fact are reviewed for clear error, and legal conclusions de novo. This posture matters in termination appeals because credibility determinations and safety-risk findings typically receive substantial deference. Here, the circuit court’s express finding that the father was “not a credible witness” (especially about substance use and insight into prior adjudications) was therefore difficult to overturn absent clear error.
  • 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))
    This is the central “least restrictive alternative” rule the Court applied: termination “may be employed without the use of intervening less restrictive alternatives” when there is “no reasonable likelihood” that the conditions can be substantially corrected. The father’s appellate argument sought to reintroduce an obligation to use lesser dispositions; the Court treated Kristin Y./R.J.M. as dispositive authority permitting termination once the statutory “no reasonable likelihood” finding is supported.
  • 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))
    The Court used Timber M./Charity H. for a practical and recurring child-welfare principle: when a parent fails to acknowledge the underlying problems of abuse and neglect, that denial “results in making the problem untreatable.” This citation anchored the Court’s reasoning that the father’s continued minimization, denial of substance use despite screens, and rejection of offered services justified the conclusion that correction was not reasonably likely within a reasonable time.

Legal Reasoning

The Court’s reasoning proceeds in a statutory sequence consistent with West Virginia abuse-and-neglect dispositions:

  1. Identify the governing statutory benchmark: “no reasonable likelihood” of correction.
    The Court relied on West Virginia Code § 49-4-604(d), which defines “[n]o reasonable likelihood that conditions of neglect or abuse can be substantially corrected” as circumstances where the abusing adult demonstrates an inadequate capacity to solve the problems “on their own or with help.”
  2. Connect the facts to the statutory examples in § 49-4-604(d)(1) and (3).
    The Court held the record supported both: (a) habitual drug abuse impairing parenting with failure to respond to recommended treatment, and (b) failure to respond to or follow through with rehabilitative efforts, evidenced by continuation or insubstantial diminution of conditions. The father’s positive screens, refusal of substance-abuse services, non-participation in domestic-violence/couples therapy, and a renewed supervision failure after reunification were treated as concrete evidence of non-correction.
  3. Treat “denial” as evidence that problems cannot be treated or corrected.
    Citing In re Timber M. (quoting In re Charity H.), the Court reasoned that the father’s refusal to acknowledge risk—insisting his supervision lapses and substance issues posed no danger—made remediation unlikely. The circuit court’s credibility finding reinforced this conclusion.
  4. Address the “least restrictive alternative” argument through the Kristin Y./R.J.M. rule.
    Once “no reasonable likelihood” is established and the children’s best interests so require, termination may be ordered without intermediate alternatives. The Court emphasized the circuit court considered alternatives but found termination appropriate given the ongoing threat to the children’s health, welfare, and safety.

Notably, the Court’s analysis is grounded in timing and regression: the children were returned home in June 2024, yet a serious elopement incident occurred in September 2024, followed by drug-screen issues and service noncompliance. This post-reunification deterioration functioned as strong proof that improvement periods had not produced durable change.

Impact

Although issued as a memorandum decision, the opinion reinforces several operational rules that will likely influence future abuse-and-neglect litigation:

  • Least-restrictive arguments fail where “no reasonable likelihood” is proven. The decision underscores that courts are not required to cycle through lesser dispositions once the statutory standard is met and the child’s best interests point to termination.
  • Post-reunification safety incidents carry exceptional weight. A new elopement event after reunification can serve as compelling evidence that supervision deficits remain uncorrected and that risk persists despite services.
  • Credibility and insight are central. Findings that a parent is not credible, coupled with denial/minimization of risk, support conclusions that conditions are “untreatable” and not correctable within a reasonable time.
  • Service refusal can be outcome-determinative. Declining substance-abuse services and failing to engage in required domestic-violence interventions can satisfy § 49-4-604(d)(3)’s “failure to follow through” pathway.
  • Drug screens plus denial can establish impairment even absent admissions. The Court accepted the circuit court’s reliance on repeated positives and inconsistent explanations (e.g., CBD products) as supporting adjudication and termination.

Complex Concepts Simplified

“Least restrictive alternative”
In child-welfare dispositions, courts generally prefer the option that protects children while limiting intrusion into family rights. But West Virginia law allows termination—without trying lesser options—if the court finds there is no reasonable likelihood the problems will be corrected in time.
“No reasonable likelihood that conditions of neglect or abuse can be substantially corrected”
A legal conclusion defined by statute (W. Va. Code § 49-4-604(d)). It does not require certainty; it asks whether meaningful, timely correction is realistically likely. Persistent relapse, continued unsafe conditions, noncompliance with services, and lack of insight can support this finding.
“Improvement period”
A court-ordered period during which a parent receives services and must demonstrate progress correcting the conditions that brought the case to court. Here, multiple improvement periods and reunification did not prevent renewed safety incidents and noncompliance.
“Elopement”
In this context, a child leaving a safe setting without supervision. It is treated as a serious safety issue, especially when children have special needs and may be unable to protect themselves from traffic, exposure, or strangers.
“Credibility finding”
The trial judge’s determination about whether testimony is believable. Appellate courts usually defer to these findings because the trial judge sees the witness firsthand.

Conclusion

In re B.E., C.E., and S.E. reaffirms that West Virginia courts may terminate parental rights without imposing lesser alternatives when the evidence supports a statutory “no reasonable likelihood” finding under W. Va. Code § 49-4-604(d) and termination is in the children’s best interests. The decision highlights how post-reunification safety failures, positive drug screens coupled with denial, refusal of treatment services, and non-participation in required therapy can combine to demonstrate that the underlying conditions are not being corrected—and, due to lack of acknowledgment, may be effectively “untreatable.”