                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                    FILED
In re H.L.                                                                    September 13, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-0241 (Randolph County 2018-JA-137)                                        SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                               MEMORANDUM DECISION



       Petitioner Mother J.C., by counsel J. Brent Easton, appeals the Circuit Court of Randolph
County’s January 31, 2019, order terminating her parental rights to H.L.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, Timothy H. Prentice, filed
a response on behalf of the child, also in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in denying her request for a post-adjudicatory improvement
period and 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.

        Prior to the initiation of the instant proceedings, the DHHR filed a child abuse and neglect
petition against petitioner and the father regarding an older child in December of 2017. The DHHR
alleged domestic violence in the child’s presence, including at least nine instances of law
enforcement intervention. Petitioner stipulated to the allegations contained in the petition, and the
circuit court accepted petitioner’s stipulation, adjudicated her as an abusing parent, and granted
her a post-adjudicatory improvement period. Petitioner only minimally complied with her
improvement period. At a dispositional hearing held in August of 2018, the DHHR presented
evidence that petitioner failed to comply with the random call-in system for drug screens, resulting
in several missed screens. While petitioner had successfully submitted to forty drug screens with
negative results, she failed to cooperate with parenting and adult life skills classes. Petitioner also

       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).


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became homeless during the proceedings and began living under a bridge, refusing to enter a
shelter because she did not want to be separated from the father. Though the parties urged
petitioner to separate from the father, she refused to do so and failed to adequately address her
issues with domestic violence. Ultimately, the circuit court terminated petitioner’s parental rights
to that child in September of 2018. Petitioner appealed, and this Court affirmed the circuit court’s
order on April 19, 2019. See In re A.L., No. 18-0961, 2019 WL 1765071 (W. Va. Apr. 19,
2019)(memorandum decision).

        Subsequently, petitioner gave birth to H.L., the child at issue in this appeal. In November
of 2018, the DHHR filed the instant child abuse and neglect petition against petitioner and the
father primarily based upon aggravated circumstances. The DHHR noted that petitioner failed to
address the circumstances of abuse in the prior proceedings and had not addressed her issues with
domestic violence. A Child Protective Services (“CPS”) worker reported that, upon arriving at the
hospital following H.L.’s birth, petitioner became irate and began cursing at the worker, informing
her that she would have to “pry the baby out of her dead arms.” Petitioner’s behavior escalated
and she threatened to kill the CPS worker by slitting her throat and also threatened to kill the foster
parent. Law enforcement removed the parents from the premises at that time.

        Later in November of 2018, the circuit court held an adjudicatory hearing wherein
petitioner stipulated to the allegations contained in the petition and requested a post-adjudicatory
improvement period. The circuit court held petitioner’s motion for an improvement period in
abeyance and scheduled the dispositional hearing. In the meantime, petitioner was granted
supervised visits and ordered to continue submitting to drug screens, which had been ordered at
the preliminary hearing.

        The circuit court held a dispositional hearing in January of 2019. Testimony established
that petitioner had not experienced a change in circumstances since the prior proceedings. While
petitioner had remedied her homelessness by obtaining housing, she failed to correct her issues
with domestic violence. Following the prior proceedings, petitioner remained in a relationship with
the father against the advice of the parties. Their tumultuous behavior continued and petitioner
eventually sought a domestic violence protective order (“DVPO”) against the father in October of
2018. However, petitioner invited the father to visit her in violation of the DVPO, resulting in his
incarceration. Despite this evidence, petitioner stated that she and the father had “been doing really
good since October” and denied having an anger problem. Petitioner did admit that neither she nor
the father had sought any services to address their domestic violence issues. Testimony also
established that petitioner had not been consistent in submitting to drug screens and that, following
his release from incarceration, the father had not submitted to a single screen. Nevertheless,
petitioner persisted in her stance that she intended to remain in a relationship with the father and
that they would seek to comply with the terms of an improvement period as a couple.
        After hearing evidence, the circuit court denied petitioner’s motion for a post-adjudicatory
improvement period. The circuit court found that petitioner’s issues with domestic violence
remained given her continued relationship with the father and her filing a DVPO against him. The
circuit court determined that petitioner obviously knew that the father was noncompliant with the
services put in place by the DHHR and “continues to be aware of his current failure to participate
in any type of . . . efforts.” Specifically, petitioner knew that the father had not made any efforts
to address his issues with domestic violence and she had not made any efforts to seek counseling

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or other services to address her own issues with the same. Accordingly, the circuit court found that
there had been no change of circumstances since petitioner’s prior termination of parental rights
and further found that, given the evidence presented, there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and termination was
necessary for the child’s welfare. It is from the January 31, 2019, dispositional order terminating
her parental rights 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 the circuit court erred in denying her motion for a post-
adjudicatory improvement period. According to petitioner, she demonstrated that she was likely
to comply with the terms and conditions of an improvement period. Petitioner testified that she
obtained housing and “participated partly” in the parenting and adult life skills classes offered to
her during the prior proceedings. Further, she participated in supervised visits with the child and
was actively seeking employment. Petitioner contends it was unfair of the DHHR to focus on her
“emotional” reaction towards the CPS worker when she removed the child from the hospital, and
that she should have been granted an improvement period based upon all the positive steps taken.
We disagree.

        Pursuant to West Virginia Code § 49-4-610(2)(A) and (B), a circuit court may grant a post-
adjudicatory improvement period when the parent “files a written motion requesting the
improvement period” and “demonstrates, by clear and convincing evidence, that the [parent] is
likely to fully participate in the improvement period.” 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) (“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


       2
         The father’s parental rights were also terminated below. The child was placed in the same
foster home as her older sibling and the permanency plan is adoption in that home.


                                                  3
W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to grant an improvement
period within the applicable statutory requirements . . . .”).

        Petitioner fails to establish that she was likely to fully participate in an improvement period.
Although petitioner complied with obtaining housing and participating in supervised visits, she
failed to address the main issue in her case—domestic violence. The record demonstrates that
petitioner was aware that domestic violence with the father was an issue. During the prior
proceedings, petitioner was informed that her continued relationship with the father could impact
her parental rights, especially given his failure to participate in any aspect of the proceedings.
Nevertheless, petitioner remained in a relationship with the father and their issues with domestic
violence continued, resulting in petitioner obtaining a DVPO against him in October of 2018.
However, despite this continued domestic violence, petitioner invited the father back into her life,
in violation of the DVPO. Further, at the dispositional hearing, petitioner failed to meaningfully
acknowledge her issues with domestic violence. Petitioner denied having an anger problem, stating
she had not had any issues with anger since meeting the father and giving birth to their children.
Petitioner also stated that, despite not seeking any services to treat their issues with domestic
violence, she and the father “had been doing really good since October.”

       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)). As such, despite her testimony that she would
comply with an improvement period, petitioner’s failure to acknowledge the conditions of abuse
and neglect demonstrate that granting her an improvement period would merely be an exercise in
futility at the children’s expense.

        To the extent that petitioner argues that the DHHR wrongfully focused on her “emotional”
reaction at the hospital, we note that the circuit court considered petitioner’s objection to this
testimony and concluded “I think to a certain extent the issues may have to do with adjudication
and I have heard this testimony. But I would in regard to some of the testimony that [petitioner]
provided—I would like to get to address that.” As such, the circuit court recognized that the
testimony might be more relevant to adjudication and afforded it weight accordingly. Based on the
foregoing, we find no error in the circuit court’s decision to deny petitioner’s motion for a post-
adjudicatory improvement period.

       Petitioner next assigns as error the circuit court’s termination of her parental rights.
However, we note that in her brief before this Court, petitioner failed to cite to a single case or to
the appendix record in support of her argument. Indeed, petitioner failed to write a single sentence
in support of this contention other than her assignment of error heading. These failures are in direct



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contradiction of 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,
       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.

Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, the Court specifically noted 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 lacks any argument at all, save her single-sentence
assignment of error that the circuit court erred in terminating her parental rights. “[A] skeletal
‘argument,’ really nothing more than 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)). Because
petitioner’s brief with regard to this assignment of error 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.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 31, 2019, order is hereby affirmed.


                                                                                           Affirmed.

ISSUED: September 13, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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