In re L.W., 20-0823

Petition filed June 27, 2019 by DHHR alleging J.W. (father) abused/neglected child L.W.: father was incarcerated, had extensive criminal history, and had not developed a parenting relationship; child initially in mother S.H.’s custody but parents were homeless and neglectful.
J.W. stipulated at adjudication (Oct. 15, 2019) and was adjudicated abusive/neglectful; court later granted a six-month post-adjudicatory improvement period commencing Oct. 30, 2019.
Improvement-plan terms included sobriety, consideration of Vivitrol (DHHR preferred) and not resuming buprenorphine, mental-health services, housing, employment, and visits with L.W.
J.W. repeatedly failed to comply: did not submit to any drug screens, skipped the court-ordered psychological evaluation, obtained buprenorphine despite DHHR’s recommendation, failed to visit L.W., and had minimal contact with counsel; he did obtain housing and employment.
Circuit court terminated J.W.’s parental rights on Sept. 11, 2020, finding no reasonable likelihood he could substantially correct conditions of abuse/neglect; J.W. appealed arguing the court should have used the less-restrictive disposition under W. Va. Code §49-4-604(c)(5) and that the court impermissibly penalized him for using medication-assisted treatment (MAT).

Issue	Plaintiff's Argument (J.W.)	Defendant's Argument (DHHR/GAL)	Held
Whether termination was improper because court should have used §49-4-604(c)(5) (less-restrictive temporary commitment)	J.W. argued he substantially complied (housing, employment, out of custody) and deserved a temporary placement rather than termination	DHHR/GAL argued J.W. failed to substantially comply with material plan terms (no drug screens, no psychological exam, no visits), showing no reasonable likelihood of correction	Court affirmed termination: evidence showed no reasonable likelihood of correction, so termination was proper under §49-4-604(d)
Whether court improperly penalized J.W. for using MAT (buprenorphine)	J.W. claimed the court biased against his buprenorphine use and violated MAT policy favoring access to MAT	DHHR/GAL said the dispute was over choice of MAT given his circumstances, not punishment for MAT use; court made no findings against MAT	Court found no evidence of MAT bias; termination based on lack of participation, not MAT choice
Whether J.W. substantially complied with improvement period	J.W. emphasized housing, employment, and being out of incarceration as substantial compliance	DHHR/GAL noted failure to comply with critical requirements (drug screening, psychological exam, visitation, participation in services)	Court held J.W. did not substantially comply; minimal involvement before and during case supported termination

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (standard of review and deference to circuit-court factual findings in abuse-and-neglect cases)
In re M.M., 244 W. Va. 316, 853 S.E.2d 556 (2020) (state public-policy support for access to medication-assisted treatment; bias against MAT disfavored)
In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (child’s health and welfare are the primary consideration over parental rights)
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (termination may be used without intervening less-restrictive alternatives when no reasonable likelihood conditions can be substantially corrected)
In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (clarification of the clearly erroneous standard of review for circuit-court findings)
In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000) (reunification of one parent does not automatically preserve the other parent’s rights)