                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                         FILED
In re P.L.
                                                                                     March 12, 2018
                                                                                    EDYTHE NASH GAISER, CLERK
No. 17-0883 (Kanawha County 16-JA-632)                                              SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father R.L., by counsel Michael M. Cary, appeals the Circuit Court of
Kanawha County’s August 29, 2017, order terminating his parental rights to P.L.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order and a supplemental appendix. The guardian ad
litem (“guardian”), Sharon K. Childers, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying his
motions for an 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
        Petitioner also sets forth an assignment of error alleging that the circuit court erred in
finding that diminished capacity warranted termination of his parental rights. However, the
argument for this assignment of error contains no citation to any legal authority. 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.

(emphasis added). 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.
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 this assignment of error is inadequate 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 not address the assignment of error on appeal.
                                                                   1

 
        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 December of 2016, the DHHR filed an abuse and neglect petition against the parents
that alleged they previously had their parental rights to an older child involuntarily terminated.
According to the petition, the parents were not sufficiently motivated and organized such that
they could properly care for the child. Moreover, the DHHR alleged that the conditions that led
to the prior involuntary termination, i.e. petitioner’s lack of capacity to properly parent the child
and the mother’s mental health issues, had not been remedied. At the preliminary hearing, a
DHHR worker testified that, upon removal of the child, the parents “struggled” to understand
why removal was necessary. Ultimately, the circuit court found probable cause to believe that the
child’s well-being was in imminent danger due to the prior involuntary termination of parental
rights. The circuit court granted the parents supervised visitation and ordered that they submit to
psychological evaluations.

        In March of 2017, the circuit court held an adjudicatory hearing. During the hearing, the
guardian moved to suspend the parents’ visitation because of concerns from the visitation
supervisor. The DHHR joined in the motion. The circuit court denied the motion but did order
that visitation occur at a new location and be reduced from two hours to one. The circuit court
also appointed a guardian ad litem for petitioner after the child’s guardian expressed concern.
Ultimately, the circuit court continued the adjudicatory hearing in order to obtain the results of
the psychological evaluations.

        In May of 2017, the circuit court held the continued adjudicatory hearing, during which
the psychologist who performed petitioner’s evaluation testified. According to the psychologist,
petitioner’s scores suggested “mild intellectual disability.” Based on the evaluation, petitioner’s
prognosis for minimally adequate parenting was poor. This was based, in part, upon the fact that
the same concerns from the prior abuse and neglect proceeding persisted. The evaluator also
indicated that he could not identify any services that would remedy the conditions of abuse and
neglect. Petitioner testified, but the circuit court found his testimony lacked credibility.
Ultimately, the circuit court found petitioner to be an abusing parent.3 In reaching this
determination, the circuit court noted the fact that petitioner failed to acknowledge any problems
with his parenting and that his condition appeared to have deteriorated since the prior abuse and

                                                            
              3
        The circuit court actually found petitioner to be an “abusing and neglecting parent.”
However, West Virginia Code § 49-1-201 defines “abusing parent” as one “whose conduct has
been adjudicated by the court to constitute child abuse or neglect as alleged in the petition
charging child abuse or neglect.” (emphasis added). Because the definition of abusing parent
encompasses a parent who has been adjudicated of either abuse or neglect, and because the term
“neglecting parent” does not appear in the statutory framework governing abuse and neglect
proceedings, we will use the correct term in this memorandum decision.
                                                               2

 
neglect proceeding. Moreover, the circuit court found that instead of seeking help upon P.L.’s
birth, the parents lied about their situation and attempted to hide the child. Further, the circuit
court noted that the parents did not provide proof of any services completed since the prior
involuntary termination of parental rights. Petitioner moved for a post-adjudicatory improvement
period, but both the child’s guardian and the DHHR objected. The circuit court denied the
motion and additionally suspended petitioner’s visitation with the child.

         In August of 2017, the circuit court held a dispositional hearing, during which a DHHR
case manager testified that there were no services the DHHR could offer to remedy the
conditions in the home. The DHHR worker also testified to the services petitioner received
during the course of his prior abuse and neglect case in 2014 and 2015 that were unsuccessful.
Petitioner moved for a post-dispositional improvement period, but the circuit court denied this
motion. In terminating petitioner’s parental rights, the circuit court found that petitioner lied to
hospital staff when the child was born in order to obscure the fact that his parental rights to an
older child were previously involuntarily terminated. Moreover, the circuit court found that the
only way petitioner could properly care for the child would be with a provider living in the home
offering assistance at all times. As such, the circuit court terminated petitioner’s parental rights.4
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.

        On appeal, petitioner argues that the circuit court erred in denying his motions for
improvement periods because he established that he was likely to fully comply with the terms
and conditions thereof. According to petitioner, his attendance at all hearings, visits with the
child, and meetings with counsel illustrated his dedication to the proceedings. Moreover, he


                                                            
              4
       The mother’s parental rights were also terminated. According to respondents, the
permanency plan for the child is adoption by a relative.
                                                               3

 
argues that he did not have issues with drugs or alcohol. We do not find these arguments
compelling.

        Pursuant to West Virginia Code § 49-4-610(2) and (3), a circuit court may grant an
improvement period when the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period[.]” However, we have also noted
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”). While petitioner argues that he satisfied his burden to obtain
an improvement period, he ignores the fact that both the psychologist that evaluated him and a
DHHR service provider testified that there were no services that could remedy the issues of
abuse and neglect in the home. Specifically, the evidence established that petitioner’s condition
actually deteriorated since the prior involuntary termination of his parental rights, with the
psychologist finding that petitioner’s prognosis for minimally adequate parenting was poor.

      Moreover, the circuit court found that petitioner “blame[d] others” for the child’s
removal, including the DHHR and the circuit court. We have previously 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)). Because petitioner failed to acknowledge the
conditions in the home, it is clear that an improvement period would have been inappropriate.
Further, petitioner fails to acknowledge that, pursuant to West Virginia Code § 49-4-
604(b)(7)(C), the DHHR was not required to make reasonable efforts to preserve the family due
to the prior involuntary termination of his parental rights to an older child. As such, we find no
error in the circuit court’s denial of petitioner’s motions for an improvement period.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 29, 2017, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: March 12, 2018




                                                4

 
CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
 




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