In re C.B., Jr., J.B., C.B., C.B., D.B., and W.B. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re C.B., Jr., J.B., C.B.-1, C.B.-2, D.B., and W.B. FILED
June 24, 2020
No. 19-1186 (Wayne County 18-JA-62 – 18-JA-67) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother B.B., by counsel Shawn Bartram, appeals the Circuit Court of Wayne
County’s November 22, 2019, order terminating her parental rights to C.B. Jr., J.B., C.B.-1, C.B.-
2, D.B., and W.B. 1 The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel Katherine A. Campbell, filed a response in support of the circuit court’s order and a
supplemental appendix. The guardian ad litem, Kimberly McGann, 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-dispositional improvement period and in terminating
her parental rights.
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 October of 2018, the DHHR filed a child abuse and neglect petition alleging that
petitioner abused controlled substances and was unable to care for the children. The DHHR further
alleged that the children were either truant or not properly enrolled in school. Finally, the DHHR
alleged that petitioner failed to provide the children with adequate housing.
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). Additionally, two of the children share the same initials and we
refer to them as C.B.-1 and C.B.-2, respectively, throughout this memorandum decision. Finally,
we note that petitioner’s counsel prefaced the brief on appeal in accordance with Rule 10(c)(10)(b)
of the West Virginia Rules of Appellate Procedure and sought leave for petitioner to file a pro se
supplemental brief. We granted petitioner leave to file a pro se supplemental brief on March 20,
2020; however, petitioner did not file an additional brief.
1
The circuit court continued four adjudicatory hearings over the next five months. Two of
those continuances were due to petitioner’s absence. During this time, petitioner tested positive
for ecstasy and methamphetamine. In March of 2019, petitioner stipulated to the allegations in the
petition that she abused methamphetamine and failed to provide the children with adequate
housing. The circuit court accepted petitioner’s stipulation and adjudicated her as an abusing
parent. Petitioner failed to appear for a dispositional hearing in April of 2019, but was represented
by counsel. Based upon reports that petitioner had been in contact with the DHHR and her counsel,
the circuit court granted her a post-adjudicatory improvement period.
At the final dispositional hearing in November of 2019, the circuit court heard evidence
that petitioner produced drug screens positive for methamphetamine and missed multiple drug
screens throughout her improvement period. Additionally, the evidence showed that petitioner
obtained low income housing, but was evicted from that housing prior to the dispositional hearing.
Finally, the court heard evidence that petitioner failed to maintain gainful employment, as required
by the terms of her improvement period. Petitioner moved for a post-dispositional improvement
period and asserted that she had potential housing and previously undisclosed income. Ultimately,
the circuit court concluded that petitioner had been inconsistent in her compliance with the DHHR
treatment recommendations and failed to remedy the conditions of abuse and neglect during her
improvement period. Further, the court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that it was
contrary to the children’s welfare to be returned to petitioner’s custody due to her ongoing
substance abuse and lack of suitable housing. Accordingly, the circuit court denied petitioner’s
motion for a post-dispositional improvement period and terminated petitioner’s parental rights by
its November 22, 2019, order. Petitioner now appeals that order. 2
The Court has previously held:
“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).
2
The parental rights of the children’s respective fathers were also terminated below.
According to the parties, the circuit court ordered that the siblings be separated for the purpose of
placement, and the children were placed in pre-adoptive foster homes. The exception is W.B., who
was placed in relative care. The permanency plan for each child is adoption in their respective
placements.
2
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Upon review, this Court finds no
error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in denying her motion for a post-
dispositional improvement period. She asserts that she was compliant with the directives of the
DHHR and that there was sufficient evidence for the circuit court to grant her an additional
improvement period. We disagree.
West Virginia Code § 49-4-610(3)(B) provides that the circuit court may grant a parent a
post-dispositional improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” Further, since
petitioner was previously granted a post-adjudicatory improvement period during the proceedings,
she was required to “demonstrate[] that since the initial improvement period, [she] has experienced
a substantial change in circumstances [and] . . . due to that change in circumstances, [she] is likely
to fully participate in the improvement period.” W. Va. Code § 49-4-610(3)(D). We have noted
that “West Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). “[I]f a parent
is unable to demonstrate an ability to correct the underlying conditions of abuse and/or neglect in
the near future, termination of parental rights may proceed without the utilization of an
improvement period.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631, 639 (2004). Here,
petitioner failed to demonstrate that she was likely to participate in an improvement period.
Contrary to petitioner’s assertion on appeal, the circuit court found that petitioner inconsistently
participated in the terms of her case plan. Indeed, the record shows that petitioner continued to
produce positive drug screens and failed to report for screening on multiple occasions, and she
failed to maintain housing or gainful employment throughout her improvement period. Moreover,
petitioner failed to argue below or on appeal that she experienced a substantial change in
circumstances that makes her likely to fully participate in an additional improvement period.
Accordingly, we find that the circuit court did not err in denying petitioner’s motion for an
improvement period because she failed to meet the requirements of West Virginia Code § 49-4-
610(3)(B).
Petitioner also argues that the circuit court erred in terminating her parental rights because
she substantially complied with the terms of her improvement period. She avers that an extension
of her improvement period was a more appropriate disposition. However, petitioner’s argument
on appeal is woefully inadequate, both in terms of complying with this Court’s rules and
establishing error by the circuit court. Specifically, petitioner fails to cite to a single legal authority
that would entitle her to relief, which is in violation of Rule 10(c)(7) of the West Virginia Rules
of Appellate Procedure. 3 As this Court has held, “[a] skeletal ‘argument,’ really nothing more than
3
Rule 10(c)(7) provides as follows:
The 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,
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
(continued . . . )
3
an assertion, does not preserve a claim . . . . Judges are not like pigs, hunting for truffles buried in
briefs.” State v. Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011) (quoting
U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
Even more critically, petitioner has not even attempted to argue that the circuit court’s
findings of fact, upon which termination was based, were erroneous. Accordingly, petitioner has
waived any right to relief on appeal by failing to identify any alleged error below. Nevertheless,
upon our review, we find that the circuit court had ample evidence upon which to base findings
that there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect in the near future and that termination was necessary for the children’s welfare.
Pursuant to West Virginia Code § 49-4-604(b)(6) (2019), 4 circuit courts may terminate parental
rights upon these findings. See also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55(2011) (holding that termination of parental rights, “the most drastic remedy” in abuse and neglect
cases, may be employed “when it is found that there is no reasonable likelihood . . . that conditions
of neglect or abuse can be substantially corrected”). Petitioner’s failure to cite to any evidence or
authority supporting her position is fatal to this assignment of error, and we find that she is entitled
to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 22, 2019, order is hereby affirmed.
Affirmed.
ISSUED: June 24, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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.
4
Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
4