                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


   In Re: B.C., D.C., & B.C.                                                          FILED
                                                                                   June 15, 2015
   No. 14-1173 (Braxton County 14-JA-13, 14-JA-14, & 14-JA-15)                  RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                                 MEMORANDUM DECISION
           Petitioner Mother P.C., by counsel Kevin Hughart and Christen M. Justice, appeals the
   Circuit Court of Braxton County’s October 14, 2014, order terminating her parental rights to
   B.C.-1, D.C., and B.C.-2.1 The West Virginia Department of Health and Human Resources
   (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the circuit court’s order.
   The guardian ad litem (“guardian”), Michael W. Asbury Jr., filed a response on behalf of the
   children supporting the circuit court’s order. Petitioner filed a reply and a supplemental
   appendix. On appeal, petitioner alleges that the circuit court erred in (1) denying her motion for a
   post-adjudicatory improvement period; (2) failing to dismiss the abuse and neglect petition; (3)
   failing to immediately appoint her counsel in the proceedings; and (4) terminating her parental
   rights to the children.2


          1
           Because two children share the same initials, the Court will refer to the children as B.C.­
   1 and B.C.-2 throughout the memorandum decision. Further, we note that West Virginia Code §§
   49-1-1 through 49-11-10 were repealed and recodified during the 2015 Regular Session of the
   West Virginia Legislature. The new enactment, West Virginia Code §§ 49-1-101 through 49-7­
   304, has minor stylistic changes and became effective ninety days after the February 19, 2015,
   approval date. In this memorandum decision, we apply the statutes as they existed during the
   pendency of the proceedings below.
          2
            Petitioner alleges an additional seventeen assignments of error in her petition for appeal.
   However, in her argument in support of these additional assignments of error, petitioner does not
   cite to a single case, statute, rule, or other authority to support her arguments. 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 . . .
                                                    1


213


        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 May of 2014, the DHHR filed an abuse and neglect petition following an investigation
initiated by nine-year-old D.C.’s report to a teacher that petitioner grabbed him by the neck and
hit his head into a doorknob earlier that day. Petitioner is the adoptive mother of B.C.-1 and D.C.
and is the legal guardian of B.C.-2 pursuant to an apparent voluntary transfer of custody by B.C.­
2’s father, who is an adult adoptive son of petitioner. During D.C.’s disclosure, he was crying
and upset and showed the teacher a knot on the back of his head that he said petitioner caused.
D.C. also gave the teacher a piece of the doorknob that dislodged during the incident. When
questioned, both B.C.-1 and D.C. disclosed other acts of abuse by petitioner, which included
striking D.C. with belts, slapping B.C.-1 with the back of her hand and pulling B.C.-1’s hair, and
forcing D.C. to shower with his clothes on in scalding hot water. According to the children,
petitioner created a general atmosphere of fear in the home. The children also disclosed acts of
domestic violence by petitioner toward another adult in the home, J.C., some of which
culminated in petitioner striking walls with a baseball bat. The DHHR thereafter arranged for the
two oldest children, B.C.-1 and D.C., to be interviewed at the Child Advocacy Center.

        In June of 2014, the circuit court held a preliminary hearing. Petitioner appeared without
counsel and requested a continuance in order to have counsel appointed or retained. The circuit
court granted this motion and rescheduled the preliminary hearing for June 12, 2014. At that
time, petitioner appeared for the preliminary hearing with her court-appointed attorney. That
same month, the DHHR filed an amended petition which included additional allegations that
petitioner used excessive and inappropriate forms of discipline on the children, which included
using a baseball bat to intimidate the children and placing D.C. in a tub of cold water until he
regurgitated cookies he ate without permission. The amended petition further alleged that
petitioner hit the children with a spatula and a remote control, and exhibited anger control issues
by pulling down shelves and breaking things in the children’s room while they were present. In
addition, the petition alleged that petitioner violated the circuit court’s initial custody order by
removing B.C.-2 from his foster home and, as a result, was charged criminally with felony child
concealment and multiple misdemeanors.3


. . . 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 is inadequate as it fails to comply with the administrative order and the
West Virginia Rules of Appellate Procedure. Thus, we decline to address petitioner’s
assignments of error as they were not properly developed on appeal.
       3
         In her petition for appeal, petitioner asserts that she is an attorney licensed to practice in
the State of West Virginia and a former prosecuting attorney in the State. In light of this fact, . . .
                                                  2


        The circuit court held an adjudicatory hearing in July of 2014, during which petitioner
stipulated to certain allegations, including backhanding B.C.-1 and aggressively pulling B.C.-1’s
hair to the point the child had to pry herself away from petitioner. Petitioner also stipulated to
using inappropriate discipline and demonstrating anger management issues by pulling down
shelves and breaking things in the children’s room. Petitioner then moved for a post-adjudicatory
improvement period. Before ruling on petitioner’s motion, the circuit court ordered her to
undergo a psychological evaluation prior to the dispositional hearing. The evaluation was to be
performed by psychologist Barbara Nelson with the supervision and assistance of Dr. Timothy
Saar. Additionally, petitioner requested visitation with the children a number of times throughout
the course of the case below. The guardian opposed visitation based on the nature of the abuse
and the possibility that criminal charges could result from the allegations. Later, issues
concerning criminal bond restraints prevented contact between petitioner and the children.
Moreover, the guardian repeatedly objected to visitation based on the wishes of B.C.-1 and D.C.,
who consistently voiced a desire not to return to petitioner’s home.

         In August and September of 2014, the circuit court held dispositional hearings, during
which both Ms. Nelson and Dr. Saar testified. Dr. Saar testified that petitioner’s abusive issues
stem from an “enduring personality characteristic” and not from a lack of parenting skills.
Moreover, Dr. Saar testified that petitioner believes the children have lied or made up stories
which resulted in the abuse and petitioner’s refusal to acknowledge her own problems and issues.
According to Dr. Saar, petitioner believed the majority of the problems in the home were caused
by the children’s behavior and that during her interview, petitioner focused on blaming the
children. Thus, Dr. Saar opined that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse in the home, especially in light of her belief that the
issues of abuse lie with the children and not with her. Ms. Nelson also testified that petitioner
blamed the children. Moreover, petitioner’s parenting education provider testified that while
petitioner attended these services, she did not feel that petitioner benefitted because she never
admitted she did anything wrong that needed to be improved upon. Specifically, the provider
testified that petitioner stated the accusations against her were inaccurate. During her
dispositional testimony, petitioner attempted to minimize her prior stipulations, testifying that
she pulled B.C.-1’s hair as a safety measure to keep the child from breaking a glass door while
having a tantrum. Petitioner also testified that, contrary to her stipulations, she was not angry
when she pulled down the shelves, but was merely cleaning them and pulled them down.


. . . and petitioner’s apparent criminal conduct during the proceedings below, we find a referral
of this matter to the Office of Disciplinary Counsel (“ODC”) to be warranted. “When this Court
believes a case before it presents the appearance of conduct that does not comport with the West
Virginia Rules of Professional Conduct (RCP), we will comply with Rule 8.3(a) of the RPC and
Canon 3D(2) of the Code of Judicial Conduct, and refer the matter to the Office of Disciplinary
Counsel for its review and appropriate action.” Syl. Pt. 8, Gum v. Dudley, 202 W.Va. 477, 505
S.E.2d 391 (1997). Accordingly, we direct the Clerk of the Supreme Court of Appeals to
transmit a certified copy of this Opinion to the ODC. To be clear, by making this referral we
express no opinion as to whether disciplinary proceedings ultimately should be initiated or how
such proceedings should be resolved. It is for ODC to determine whether, and/or how, to proceed
after it has reviewed this matter.
                                                 3


Following the dispositional hearing, petitioner submitted objections to the circuit court’s
dispositional findings and attempted to mitigate any fault to which she previously stipulated.
Petitioner specifically stated that she only stipulated to abuse so she could receive an
improvement period. Ultimately, the circuit court denied petitioner’s motion for a post­
adjudicatory improvement period and terminated her parental rights. Petitioner appeals from the
dispositional order.

       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 circuit court denying petitioner’s motion for a post-adjudicatory improvement
period, failing to dismiss the abuse and neglect petition, failing to immediately appoint her
counsel in the proceedings, or terminating her parental rights to the children.

        To begin, petitioner argues that she was entitled to a post-adjudicatory improvement
period because she stipulated to certain allegations in the petition at adjudication. However,
petitioner’s argument on this issue misstates the law applying to improvement periods. Petitioner
cites to In re Darla B., 175 W.Va. 137, 331 S.E.2d 868 (1985) to argue that a circuit court may
only deny an improvement period when “compelling circumstances” justify such a refusal.
While this is an accurate reflection of the holding in that specific case, this argument ignores
subsequent holdings from this Court on the matter of improvement periods as well as amendment
to the statute governing post-adjudicatory improvement periods. Specifically, West Virginia
Code § 49-6-12(b)(2) provides circuit courts discretion in granting improvement periods upon a
showing “that the [parent] is likely to fully participate in the improvement period . . . .” In the
instant matter, petitioner did not satisfy this burden.

       In denying petitioner’s motion for a post-adjudicatory improvement period, the circuit
court specifically found that despite petitioner’s testimony that she would comply with an
improvement period, she went on “to justify all of her actions and . . . attribute any problems in
the home to her children.” The circuit court further found that petitioner was in a “state of
denial” concerning the abuse in the home and failed to accept responsibility for the conditions
that necessitated the petition’s filing. Moreover, following the dispositional hearing, petitioner

                                                4


submitted a series of objections to the circuit court’s findings wherein she mitigated her
culpability in the instances of abuse to which she stipulated and admitted that she only stipulated
at adjudication in order to obtain an improvement period. In discussing improvement periods, 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 outlined above, petitioner minimized her own
actions, attempted to mitigate her prior stipulations, and blamed the children for her abuse. As
such, it is clear that the circuit court did not err in denying petitioner’s motion for a post­
adjudicatory improvement period.

        As to petitioner’s argument that the circuit court erred in failing to dismiss the initial
abuse and neglect petition, we find no error in this regard. While petitioner makes certain
procedural arguments that the petition was not timely filed, reviewed, or entered, the record is
clear that petitioner never brought these issues to the circuit court’s attention or otherwise moved
to have the petition dismissed. We have previously held that our “general rule is that
nonjurisdictional questions not raised at the circuit court level will not be considered to the first
time on appeal.” State v. Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) (citing Whitlow v.
Bd. of Educ. of Kanawha County, 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993)). Because
petitioner failed to raise this issue below, the Court declines to consider the same on appeal.

       Petitioner next alleges that the circuit court erred in failing to immediately appoint her
counsel below.4 Upon our review, we find no error in this regard. While petitioner is correct that



       4
         Petitioner additionally alleges that the circuit court erred in not immediately appointing
counsel for J.C., another adult respondent who lived in the home and an alleged psychological
parent to the children. However, the Court declines to address the assignment of error insomuch
as petitioner lacks standing to assert a claim on behalf of a third party. We have previously held
that

       “[t]raditionally, courts have been reluctant to allow persons to claim standing to
       vindicate the rights of a third party on the grounds that third parties are generally
       the most effective advocates of their own rights and that such litigation will result
       in an unnecessary adjudication of rights which the holder either does not wish . . .
       . . . to assert or will be able to enjoy regardless of the outcome of the case.”
       Snyder v. Callaghan, 168 W.Va. 265, 279, 284 S.E.2d 241, 250 (1981) (citation
       omitted). . . .


                                                 5


West Virginia Code § 49-6-3(a)(2) states that the initial order in an abuse and neglect proceeding
“shall contain an order appointing counsel,” the Court finds that the circuit court’s failure to
include such language does not constitute error in light of the fact that petitioner was appointed
counsel prior to the preliminary hearing’s conclusion and was represented throughout the entirety
of the proceedings below. Specifically, petitioner appeared for the preliminary hearing on June 3,
2014, without representation and informed the circuit court that she had completed a financial
affidavit, but had not submitted it for review. As such, petitioner requested a continuance and the
circuit court granted one. Petitioner thereafter appeared for the continued preliminary hearing on
June 12, 2014, with appointed counsel.

       In regard to abuse and neglect proceedings, we have previously held that

               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Upon our review of the record,
it is clear that petitioner was not prejudiced by the lack of appointed counsel prior to the first
preliminary hearing, as evidenced by the circuit court granting a continuance so that she could
obtain counsel and her representation throughout the entirety of the proceedings below. As such,
under the specific circumstances of this case, we cannot find that the process established for
abuse and neglect proceedings was substantially disregarded or frustrated such that reversal of
any of the circuit court’s orders is necessary. Therefore, we find no error in regard to this
assignment of error.

         Lastly, petitioner argues that termination of her parental rights was erroneous because the
circuit court failed to consider any less restrictive dispositional alternatives. However, upon our
review, we find no evidence to support this argument. That the circuit court did not impose a less
restrictive dispositional alternative is not evidence that no such alternatives were considered. In
fact, petitioner’s failure to acknowledge the underlying conditions of abuse in the home left the
circuit court with no option other than termination of her parental rights because she could not
remedy these conditions. Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which
there is no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected includes one in which

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the


. . . Kanawha Cnty. Pub. Library Bd. v. Bd. of Educ. of Cnty. of Kanawha, 231 W.Va. 386, 398,
745 S.E.2d 424, 436 (2013). The Court notes that J.C. currently has an appeal from these
proceedings pending before the Court.
                                                 6
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

The circuit court was presented with overwhelming evidence that petitioner failed to respond to,
or follow through with, the services implemented below. Further, petitioner continued to deny
any wrongdoing even after undergoing services implemented to address her abusing behavior.

        Specifically, petitioner’s parenting education provider testified at the dispositional
hearing that petitioner never admitted she did anything wrong that needed to be improved upon.
Further, the provider testified that petitioner stated the accusations against her were inaccurate.
This evidence supported the circuit court’s findings that petitioner justified her abuse by
attributing problems in the home to the children and also that petitioner was in total denial
regarding the abuse. As such, the circuit court had ample evidence upon which to find that there
was no reasonable likelihood that petitioner could substantially correct the conditions of abuse in
the home. Moreover, the circuit court also found that the children’s best interests required
termination of petitioner’s parental rights. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit
courts are directed to terminate parental rights upon these findings. Further, we have held as
follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49–6–5 . . . may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under W.
       Va.Code [§] 49–6–5(b) . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). For these reasons, termination
of petitioner’s parental rights was not error.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
October 14, 2014, order is hereby affirmed.

                                                                                        Affirmed.

ISSUED: June 15, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

NOT PARTICIPATING:

Justice Robin Jean Davis

                                                7


