In re M.B. and P.B. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re M.B. and P.B. FILED
February 7, 2020
No. 19-0530 (Jackson County 18-JA-31 and 18-JA-34) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother G.C., by counsel Seth Harper, appeals the Circuit Court of Jackson
County’s April 26, 2019, order terminating her parental rights to M.B. and P.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”), Erica
Brannon Gunn, 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 terminating her post-adjudicatory
improvement period.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 March of 2018, the DHHR filed an abuse and neglect petition against the parents
alleging that their substance abuse affected their ability to parent and care for M.B. Specifically,
the DHHR alleged that the police investigated a report of an unattended toddler wading in
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
On appeal, petitioner does not specifically challenge the circuit court’s termination of
her parental rights.
1
floodwaters, and later located the child’s parents asleep inside the home. According to the
DHHR, the parents stated that they did not know the location of their child, M.B., and petitioner
appeared both pregnant and under the influence of drugs or alcohol. Further, the petition alleged
that the parents had been convicted of drug offenses and were required to submit to regular drug
screening. The DHHR learned that the father tested positive for amphetamine in March of 2018,
and petitioner tested positive for methamphetamine in February of 2018.
Thereafter, the circuit court held a contested preliminary hearing and found probable
cause to believe that M.B. was in imminent danger due to the parents’ lack of supervision and
positive drug screens. Also, the circuit court learned that as a result of the positive drug screens,
petitioner was incarcerated for violating her probation and the father was placed on home
incarceration for violating his parole. While incarcerated, petitioner gave birth to the second
child, P.B., who was born drug-exposed. In April of 2018, the DHHR amended the petition to
allege that P.B. was abused and neglected and suffered from withdrawal symptoms. A
subsequent preliminary hearing ratified the removal of P.B. from the home.
In June of 2018, the circuit court held an adjudicatory hearing. The parents did not
appear, but counsel represented them. The circuit court took judicial notice of testimony
presented at the preliminary hearing and adjudicated the parents as abusing parents based upon
the lack of supervision of M.B. and the parents’ positive drug screens. In October of 2018,
petitioner filed a motion for a post-adjudicatory improvement period based upon her admission
to an inpatient rehabilitation program as a condition of bond in her criminal matter. The next
month, the circuit court held a dispositional hearing and learned that petitioner had been doing
well in her rehabilitation program. Accordingly, the circuit court accepted petitioner’s signed
family case plan, which required that she complete an inpatient rehabilitation program, and
granted her motion for a post-adjudicatory improvement period.
In March of 2019, the DHHR filed a motion to revoke petitioner’s improvement period
and terminate her parental rights. Later that month, the circuit court held a dispositional hearing
wherein petitioner did not appear, but counsel represented her. In arguing for the termination of
petitioner’s improvement period, the DHHR testified that she failed to comply with the terms of
the family case plan when she was removed from the rehabilitation program and subsequently
incarcerated for violating her criminal bond. Further, due to petitioner’s incarceration, the DHHR
could not offer services to help her complete her family case plan’s goals. In conclusion, the
DHHR opposed the continuation of petitioner’s improvement period because it was unlikely that
she could complete it, and instead, argued that her improvement period should be terminated.
Petitioner argued that her improvement period should continue if the father were granted an
improvement period. In light of the parents’ lack of progress throughout the duration of the case,
the guardian argued that it was not in the best interests of the children to postpone permanency in
their foster home. The circuit court took the DHHR’s motion under advisement.
In light of the evidence at the dispositional hearing, the circuit court found that although
petitioner “initially made strides toward remedying her drug problem via inpatient treatment, she
was later expelled from the program and has remained incarcerated ever since.” Further, the
2
circuit court found that petitioner was no longer in compliance with the terms of her
improvement period and could not complete those terms due to her incarceration. Based upon
these findings, the circuit court terminated petitioner’s post-adjudicatory improvement period.
The circuit court further found no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future, and that it was in the best interests of the
children to terminate petitioner’s parental rights. The circuit court entered an order reflecting its
decision on April 26, 2019. Petitioner now appeals from this order.3
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 argues that “the evidence presented [below] was not enough to
warrant the premature ending of [her] improvement period and termination of parental rights.”
However, petitioner alleges no error in the circuit court’s finding that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future or that it was in the best interest of the children to terminate her parental rights.4 Instead,
3
The parents’ parental rights were terminated during the proceedings below. According to
the parties, the permanency plan for the children is adoption in their current foster placement.
4
In her brief before this Court, petitioner failed to cite to a single case or to the appendix
record in support of her assertion that the circuit court erred in terminating her parental rights.
Indeed, petitioner failed to address the issue at all, other than that quoted above. These failures
are in direct contradiction of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure
requiring 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,
(continued . . . )
3
petitioner argues that “the sole ground for appeal is [the circuit court’s determination] that there
was no likelihood that [petitioner] would complete an improvement period.” According to
petitioner, the circuit court’s finding was not supported by the evidence when the DHHR
presented testimony that she had, in fact, successfully complied with some aspects of her
improvement period. Petitioner argues that her two months of compliance with services shows
that she was likely to complete her improvement period.5 We disagree.
Pursuant to West Virginia Code § 49-4-610(7), a circuit court may terminate a parent’s
improvement period if she “has failed to fully participate in the terms of the improvement
period.” Here, the record is clear that petitioner failed to fully comply with the terms and
conditions of her post-adjudicatory improvement period. The evidence establishes that she failed
to complete inpatient rehabilitation, parenting classes, and adult life skills classes, or submit to
regular drug screens and attend supervised visitations throughout her improvement period.
Further, it is within “the court’s discretion to terminate the improvement period before the . . .
time frame has expired if the court is not satisfied that the [parent] is making the necessary
progress.” Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996).
Although petitioner attended visits with her children and briefly participated in a
rehabilitation program, she fails to address the fact that she did not complete the program or any
other rehabilitation program as required by her family case plan. Petitioner simply argues “at
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
Because petitioner’s brief with regard to this assertion is woefully inadequate and entirely fails to
comply with Rule 10(c)(7) of the Rules of Appellate Procedure, we decline to address it on
appeal.
5
Petitioner also argues that “no efforts were made to determine if the courses and classes
offered to incarcerated persons would qualify as completely [sic] the requirements contained in
petitioner’s case plan concerning basic parenting and adult life skills.” “Our general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.” Noble
v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009) (citation
omitted). We note, however, that petitioner bore the burden to initiate and complete services, and
she failed to address whether any hypothetical courses or classes she could have taken during her
incarceration would have met the DHHR’s requirements for her improvement period. See W. Va.
Code § 49-4-610(4)(A) (requiring that the parent “be responsible for the initiation and
completion of all terms of the improvement period). Indeed, petitioner fails to mention whether
she, in fact, completed such courses or classes.
4
some point for some reason, [she] was removed from the program.” However, petitioner bore the
responsibility of completing the goals of her family case plan, and she fails to address her failure
to complete its terms. The overwhelming evidence supports the circuit court’s finding that
petitioner failed to complete the terms of her improvement period and that termination of her
improvement period was appropriate.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 26, 2019, order is hereby affirmed.
Affirmed.
ISSUED: February 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
DISQUALIFIED:
Justice John A. Hutchison
5