                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: E.T. & R.B. Jr.                                                             FILED
                                                                                January 17, 2014
                                                                             RORY L. PERRY II, CLERK
No. 13-0625 (Logan County 11-JA-102 & 11-JA-103)                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                                 MEMORANDUM DECISION

        Petitioner Mother, by counsel L. Donna Pratt, appeals the Circuit Court of Logan
County’s order entered on June 10, 2013, terminating her parental rights to her children, E.T. and
R.B. Jr. The West Virginia Department of Health and Human Resources (“DHHR”), by Michael
L. Jackson, its attorney, filed its response. The guardian ad litem, Allison Dingess, 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 by denying her a dispositional improvement period after it
received evidence that she partially complied with her adjudicatory improvement period.

        As more fully explained herein, the Court is of the opinion that the circuit court erred in
failing to adjudicate the children to be abused or neglected. Because the issue before this Court is
limited to the circuit court’s failure to comply with the requirements of Rule 27 of the West
Virginia Rules of Procedure for Abuse and Neglect Proceedings, the decision of the Court is set
forth in a memorandum decision rather than an opinion. As noted below, this Court has held that
when these rules “[have] been substantially disregarded or frustrated,” any resulting order “will
be vacated and the case remanded for compliance with that process and entry of an appropriate . .
. order.” Syl. Pt. 3, in part, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009) (quoting Syl.
Pt. 5, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001)). Accordingly, this case
satisfies the “limited circumstance” requirement of Rule 21(d) of the Rules of Appellate
Procedure and it is appropriate for the Court to issue a memorandum decision rather than an
opinion.

        The DHHR filed the underlying abuse and neglect petition against Petitioner Mother and
the children’s father in November of 2011.1 The petition alleged that petitioner abused drugs and
physically abused the children. Petitioner was alleged to have been involved in a domestic
assault with the children’s father when he pulled her into the bedroom, hit her in the face, and
“busted her nose.” After arriving, the Child Protective Services (“CPS”) worker found needles
and a plate with blue powder drug residue, as well as a straw and credit card, all within reach of
the children. Petitioner Mother appeared to be impaired due to her manner of speaking and
drowsy eyes. The children were put into the DHHR’s custody as a result of this incident. In
January of 2012, petitioner acknowledged having a substance abuse problem, and counsel
indicated that she would request a post-adjudicatory improvement period. However, the circuit
court did not make any finding regarding whether the children were abused or neglected. In May

1
  A putative father to one of the children was included in the initial petition but was later
dismissed after a DNA test revealed that the children have the same biological father.
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of 2012, the circuit court granted petitioner a “post-adjudicatory improvement period,” requiring
her to complete a substance abuse evaluation and random screens, among other requirements.
Again, no findings were made regarding the children or whether petitioner was an abusing
parent. In August of 2012, petitioner’s improvement period was continued and a paternity test
established that both children are the biological children of the same father, so the putative father
was dismissed from the case. Over the ensuing six months, petitioner participated in an
improvement period but failed to follow through with all required drug screens and visitations
and had only sporadic contact with her attorney. By order entered June 10, 2013, following a
dispositional hearing, the circuit court terminated the parents’ parental rights to the children,
finding that she failed to comply with in home services and failed to correct the situation that led
to the filing of the petition. The circuit court further found that the DHHR made reasonable
efforts to preserve the family, prevent removal, and promote reunification, but that termination
was the least restrictive alternative. It is from this order that petitioner appeals. 2

       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 she was entitled to an additional improvement period,
based upon the fact that she completed the terms of her initial improvement period and expressed
a willingness to do more, that she participated in visitation with the children, that her delay in
treatment was due to surgery and medical issues early in the case, and that poverty exacerbated
her situation due to changing housing and transportation issues. A review of the record reveals
that petitioner failed to comply with the terms of her post-adjudicatory improvement period due
to her failure to address her substance abuse issues and comply with in-home services. We hold
that the circuit court had an adequate basis for finding that there was no reasonable likelihood
that the conditions of neglect or abuse could be substantially corrected in the near future and that
termination was necessary for the welfare of the children. Pursuant to West Virginia Code § 49­
6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

2
 The children’s father appealed the termination of his parental rights to the children in Case No.
13-0687.
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       The circuit court below, however, never adjudicated the children as abused or neglected.

       In any [abuse or neglect proceeding], the party or parties having custodial or other
       parental rights or responsibilities to the child shall be afforded a meaningful
       opportunity to be heard, including the opportunity to testify and to present and
       cross-examine witnesses. . . . At the conclusion of the hearing, the 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. . . . The
       findings must be based upon conditions existing at the time of the filing of the
       petition and proven by clear and convincing proof.

W.Va. Code § 49-6-2(c). Here, while the circuit court ordered an improvement period that was
labeled “post-adjudicatory,” there was no adjudication nor any finding of fact that shows an
adjudication in the record. We hold that the circuit court, therefore, must enter an order
adjudicating E.T. and R.B. Jr. to be abused or neglected children based on sufficient findings of
fact and conclusions of law.

        For the foregoing reasons, we affirm the portion of the circuit court’s order terminating
petitioner’s parental rights to E.T. and R.B. Jr., but remand for entry of an order in compliance
with the statute, including appropriate findings of fact.


                                                        Affirmed in part and remanded in part.


ISSUED: January 17, 2014


CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum

CONCURRING IN PART and DISSENTING IN PART:

Justice Margaret L. Workman
Justice Allen H. Loughry II




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No. 13-0625 – In Re: E.T. & R.B. Jr.

Loughry, Justice, concurring in part and dissenting in part:

       I concur with the majority’s decision in this case insofar as it concludes that there
was sufficient evidence for the circuit court to find that there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the
near future and that termination of the petitioner’s parental rights was necessary for the
welfare of the children. I dissent, however, from the majority’s decision to remand this
case for entry of an adjudicatory order. Whether the circuit court adequately complied
with the requirements of Rule 27 of the Rules of Procedure for Child Abuse and Neglect
Proceedings was not an issue raised by any party in this case. This Court has held that
“[a]ssignments of error that are not argued in the briefs on appeal may be deemed by this
Court to be waived.” Syl. Pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374
(1981). Moreover, in light of the majority’s conclusion that termination of parental rights
was warranted, the decision to remand this case simply elevates form over substance. It
follows from the order of termination issued by the circuit court that the children were
found to be abused and neglected. Remanding this case only serves to frustrate the
permanency plan for these children and further delay the resolution of this case. This
Court has held that “[a]lthough parents have substantial rights that must be protected, the
primary goal in cases involving abuse and neglect, as in all family law matters, must be
the health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996). To that end, I would have affirmed the decision of the circuit court.

       I am authorized to state that Justice Workman joins me in this separate opinion.




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