In Re: K v. and R.V. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: K.V. and R.V. September 19, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 16-0314 (Wayne County 15-JA-55 & 15-JA-56) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.R., by counsel Timothy P. Rosinsky, appeals the Circuit Court of
Wayne County’s February 24, 2016, order terminating her parental rights to one-year-old K.V.
and five-year-old R.V.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Alison R. Gerlach, filed a response on behalf of the children also
in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
ratifying the emergency removal of the children because the DHHR failed to prove imminent
danger to K.V.’s well-being.2
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 April of 2015, the DHHR filed a petition for immediate custody of the children in
immediate danger alleging that petitioner gave birth to K.V., who tested positive for oxycodone
and was experiencing symptoms of withdrawal. Petitioner also admitted to taking drugs during
the final two months of her pregnancy with K.V. Shortly after K.V. was released from the
hospital, she was readmitted to the hospital for a compound leg fracture which required surgery.
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
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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During this investigation, doctors discovered several other fractures, in various stages of healing,
on K.V.’s body.
Several days later, the circuit court held a preliminary hearing during which it heard
evidence that supported the allegations in the petition. While petitioner testified that R.V.
accidentally stepped on K.V.’s leg, she failed to account for K.V.’s other broken bones.
Petitioner also testified that she used Percocet during her pregnancy and that K.V. suffered from
symptoms of withdrawal after she was born. Furthermore, a case worker testified that K.V.’s
prior unexplained rib and finger fractures were reason to believe that the children were in
imminent danger which required immediate removal. Based upon his evidence, the circuit court
found that the DHHR properly removed the children from petitioner’s care. Ultimately, the
circuit court terminated petitioner’s parental rights by order entered on February 24, 2016. This
appeal followed.
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). On appeal, petitioner does not
cite to a single case in support of her argument and only makes one broad reference to West
Virginia Code § 49-4-601 in arguing that the circuit court erred in ratifying the emergency
removal of her children. In approximately four pages of argument, petitioner generically
references “49-4-601 et seq.” to support her assignment of error. Petitioner’s vague reference to
the statute and equally vague argument is in direct contradiction to this Court’s Rules of
Appellate Procedure and specific directions issued by administrative order.
Specifically, 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.
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(emphasis added). Additionally, in an Administrative Order entered December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate Procedure, 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.
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 is woefully inadequate as it fails to comply with the administrative order and the West
Virginia Rules of Appellate Procedure. While it does contain specific citations to the record on
appeal, it lacks citations to applicable authority and fails to contain even a standard of review.
Thus, petitioner’s assignment of error was not properly developed on appeal. However, despite
petitioner’s failure to preserve this issue for appeal, the Court has reviewed the record in this
matter and determined that the circuit court committed no error in regard to petitioner’s
assignment of error.
For the foregoing reasons, we find no error in the circuit court’s February 24, 2016,
order, and we hereby affirm the same.
Affirmed.
ISSUED: September 19, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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