In Re: C.W., R.W., N.W., and F.B. ( 2017 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS
December 1, 2017
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re: C.W., R.W., N.W., and F.B. OF WEST VIRGINIA
No. 17-0718 (Randolph County 2016-JA-076, 2016-JA-077, 2016-JA-078, & 2016-JA-79)
MEMORANDUM DECISION
Petitioner Mother T.W., by counsel J. Brent Easton, appeals the Circuit Court of
Randolph County’s July 18, 2017, order terminating her parental rights to C.W., R.W., N.W.,
and F.B.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad
litem (“guardian”), G. Phillip Davis, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
motion for a post-adjudicatory improvement period.2
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
2
In her brief on appeal, petitioner’s assignment of error is set forth as follows: “The lower
court abused its discretion by denying Petitioner’s motion for a post-adjudicatory improvement
period and terminating her parental rights, where the issues of abuse and neglect were
correctable, Petitioner was eager to participate and her history showed successful completion of a
prior improvement period.” However, in the section of the brief setting forth petitioner’s
argument in support of this assignment of error, she raises no argument that the circuit court
erred in terminating her parental rights. Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure requires that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on . .
. [and] must contain appropriate and specific citations to the record on appeal[.]
The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.
Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, then-Chief Justice Menis E. Ketchum
specifically noted in paragraph two that “[b]riefs that lack citation of authority [or] fail to
structure an argument applying applicable law” are not in compliance with this Court’s rules.
(continued . . . )
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This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In August of 2016, the DHHR filed an abuse and neglect petition against the parents that
alleged they were homeless after losing their rented residence due to failure to pay rent and
damage to the home. According to the petition, due to the parents’ homelessness, they sometimes
left the children with unsafe individuals they barely knew. The petition also alleged that the
parents’ drug abuse affected their ability to provide the children with a stable home, food,
clothing, and other necessities.
In November of 2016, the circuit court held an adjudicatory hearing during which it
found that the DHHR failed to meet its burden in establishing the parents’ abuse by way of
substance abuse. However, the circuit court found sufficient evidence upon which to adjudicate
the parents for failing to provide the children with appropriate shelter, food, and clothing.
In February of 2017, the DHHR filed an amended petition following one child’s
disclosure that she witnessed the parents abuse drugs, including smoking marijuana and snorting
pills. The amended petition also included an allegation that the parents evaded court-ordered
drug screens.
In April of 2017, the circuit court held an adjudicatory hearing on the amended petition
and found that the evidence established that the parents’ substance abuse impaired their
parenting abilities. This included evidence of petitioner’s failed drug screens in January of 2017,
March of 2017, and April of 2017 that were positive for either methamphetamine or marijuana,
in addition to several screens with which she failed to comply. Thereafter, the parents moved for
post-adjudicatory improvement periods.
In June of 2017, the circuit court held a dispositional hearing, during which two service
providers testified that neither parent admitted to any parenting deficiencies or substance abuse
Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the
argument presented and do not ‘contain appropriate and specific citations to the record on appeal
. . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here, petitioner’s
brief in regard to her assignment of error is inadequate, insomuch as it relates to the allegation
that termination was in error, as it fails to comply with West Virginia Rule of Appellate
Procedure 10(c)(7) and our December 10, 2012, administrative order. Accordingly, the Court
will address only the allegation that the circuit court erred in denying petitioner’s motion for a
post-adjudicatory improvement period.
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issues. In fact, one provider testified that petitioner described herself as a “near perfect” parent.
Further, petitioner blamed her siblings for initiating the Child Protective Services (“CPS”)
investigation that resulted in the children’s removal. Petitioner also asserted that her positive
drug screens were not the result of her substance abuse but, rather, were caused by over-the-
counter medications and second-hand smoke. Moreover, a CPS worker testified to the parents’
involvement in a 2009 abuse and neglect proceeding and services rendered over the years during
CPS intervention. According to this worker, the parents were adjudicated upon issues of
substance abuse in the 2009 proceedings, which included their inability to properly provide
stable housing for the children. Ultimately, the circuit court found that the parents’ failure to
acknowledge the conditions of abuse and neglect and their inability to correct them, despite years
of services, established that they were not entitled to improvement periods. The circuit court also
found that there was no reasonable likelihood the parents could substantially correct the
conditions of abuse and neglect and that termination of their parental rights was in the children’s
best interest. Accordingly, the circuit court terminated petitioner’s parental rights to the
children.3 It is from the dispositional order that petitioner appeals.
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record
viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the proceedings below.
According to petitioner, the circuit court erred in denying her request for a post-
adjudicatory improvement period because a CPS worker testified that the problems were
correctable and petitioner indicated that she wished to make changes to correct the issues of
abuse and neglect. Petitioner also argues that her successful completion of an improvement
3
The parents’ parental rights to the children were either terminated or voluntarily
relinquished below. According to the DHHR, C.W., R.W., N.W., and F.B. are placed in foster
care with a permanency plan of adoption by their foster parents.
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period during the 2009 abuse and neglect proceedings established that she was willing to comply
with the terms of a post-adjudicatory improvement period in the proceedings below. The Court,
however, does not find these arguments persuasive.
Contrary to petitioner’s assertions that she established a willingness to comply with the
terms and conditions of an improvement period, the circuit court found that she failed to
acknowledge the conditions of abuse and neglect that required correcting. According to the
circuit court, petitioner was “unaccepting . . . and unapologetic” when faced with the allegations
of abuse and neglect against her, ultimately choosing to place blame for the children’s removal
on her siblings “that are out to get her . . . .” Moreover, the circuit court found that petitioner
failed to acknowledge her substance abuse issues even as she repeatedly tested positive for
drugs. Despite the clear evidence of petitioner’s substance abuse, including her adjudication
upon the same allegations in the 2009 proceeding, the circuit court found that she did not make
“any efforts to seek out substance abuse treatment during the pendency of this action.”
In order to obtain a post-adjudicatory improvement period, West Virginia Code § 49-4-
610(2)(B) requires the parent to “demonstrate[], by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period[.]” While it is true that petitioner
testified to her willingness to participate in the terms and conditions of a post-adjudicatory
improvement period, the overwhelming evidence supported the circuit court’s finding that
petitioner failed to satisfy the burden necessary to obtain an improvement period. This is
especially true in light of petitioner’s failure to acknowledge the conditions of abuse and neglect
in the home. We have held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child’s
expense.
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)).
In addressing improvement periods, we have held that the decision to grant or deny an
improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va.
108, 115, 778 S.E.2d 338, 345 (2015) (holding that “West Virginia law allows the circuit court
discretion in deciding whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re
Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion
to grant an improvement period within the applicable statutory requirements”). We have also
held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the
[parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully
participate in the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d
631, 638 (2004). Because the evidence below showed that petitioner failed to comply with the
services offered and failed to acknowledge the conditions of abuse and neglect in the home, we
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find no abuse of discretion in the circuit court’s denial of petitioner’s motion for a post-
adjudicatory improvement period.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 18, 2017, order is hereby affirmed.
Affirmed.
ISSUED: December 1, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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