                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                 FILED
In re: J.H.                                                                 September 5, 2017
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 17-0192 (Kanawha County 16-JA-507)                                            OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father C.H., by counsel Michael M. Cary, appeals the Circuit Court of
Kanawha County’s January 23, 2017, order terminating his parental rights to J.H.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. The guardian ad litem (“guardian”), Jennifer N.
Taylor, 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 him 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 alleges that the circuit court erred in terminating his parental rights.
However, the Court will not address this assignment of error, in as much as petitioner failed to
support his assertion with a single case or a citation to the record. These failures are in direct
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]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 .
       . . [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 is inadequate, as it relates to his second assignment of error, as it fails to
comply with the administrative order and the West Virginia Rules of Appellate Procedure.
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        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.

        After receiving a referral that infant J.H. tested positive for opiates, methamphetamine,
hydrocodone, roxicodone, oxycodone, and THC at birth, in September of 2016 the DHHR filed
an abuse and neglect petition against petitioner and J.H.’s mother. In the petition, the DHHR
alleged that the infant tested positive for several illegal substances at birth, a history of domestic
violence between petitioner and the mother, and that petitioner failed to properly supervise his
child. The DHHR further alleged that petitioner’s home was extremely dirty and that he failed to
provide the child with food, housing, and clothing.

        Petitioner waived his preliminary hearing. Thereafter, the circuit court ordered both
petitioner and the mother to be screened for the presence of illegal drugs. Petitioner admitted to
use of Suboxone, but also tested positive for OxyContin and THC. Further, the circuit court
ordered the DHHR to provide services to petitioner, including inpatient and outpatient
rehabilitation services, parenting and adult life skills classes, domestic violence counseling
classes, and bus passes. The circuit court also granted petitioner a preadjudicatory improvement
period and ordered him to participate in the services offered by the DHHR and to be subject to
random drug screens.

        At the November of 2016 adjudicatory hearing, the evidence showed that petitioner
tested positive for THC, methamphetamine, oxycodone, and buprenorphine. A Child Protective
Services (“CPS”) worker testified that petitioner failed to complete a series of safety plans
instituted before the abuse and neglect petition was filed. CPS implemented these plans to
resolve issues concerning the cleanliness of the home and a lack of utilities. Ultimately, the
circuit court found that petitioner abused and neglected the child based on his drug use and
history of domestic violence.

        At the dispositional hearing, a CPS worker testified that both parents had participated in
their services “to a certain point . . . oftentimes where they participated just enough to get by and
then other times that they wouldn’t . . . keep their appointments.” The circuit court further found
that petitioner continued to use illicit drugs throughout the proceedings and failed to take
advantage of other services. Moreover, the circuit court found that petitioner failed to show any
substantial improvement and that there was no likelihood that he would ever improve. By final
order entered on January 23, 2017, the circuit court terminated petitioner’s parental rights.3 It is
from the dispositional order that petitioner appeals.



       3
         Both parents’ parental rights to the child were terminated below. According to the
DHHR and the guardian, the child was placed with his maternal grandmother. The permanency
plan is adoption in the home.
                                                  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). Upon our review, the Court finds
no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred by not granting him an
improvement period. However, the record on appeal indicates that petitioner was granted a
preadjudicatory improvement period in October of 2016, and thus, was already granted the relief
he now seeks on appeal. Because the relief petitioner seeks is unclear, we will address two
possible arguments that require the use of two different standards. We believe petitioner is
arguing that he should have been granted an extension of his preadjudicatory improvement
period, or, alternatively, that he should have been granted an additional improvement period. We
find no merit to either possible argument.

        According to West Virginia Code § 49-4-610(6), a circuit court may extend an
improvement period when, among other factors, “the court finds that the [parent] has
substantially complied with the terms of the improvement period . . . .” As set forth above,
petitioner failed to comply with the terms of his preadjudicatory improvement period. The record
shows that petitioner did not attend all parenting classes, failed all of his drug screens throughout
the proceedings, and failed to take advantage of other services. Therefore petitioner was not
entitled to an extension of his preadjudicatory improvement period.

        Further, West Virginia Code §§ 49-4-610(2)(D) and (3)(D) provide that a circuit court
may grant a parent an additional improvement period following adjudication or at disposition if,
“the [parent] demonstrates that since the initial improvement period, the [parent] has experienced
a substantial change in circumstances. Further, the [parent] shall demonstrate that due to that
change in circumstances, the [parent] is likely to fully participate in the improvement period . . .
.” Also, we have often 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, 778 S.E.2d 338 (2015)
(stating 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



                                                 3

(1996) (holding “[i]t is within the court’s discretion to grant an improvement period within the
applicable statutory requirements”).

        Here, petitioner failed to satisfy the applicable burdens to receive a new improvement
period because nothing in the record indicates that he filed a motion for a post-adjudicatory
improvement period or post-dispositional improvement period. Further, other than his assertion
that he “tried to participate” in the services ordered by the circuit court, petitioner did not present
any evidence to show that he was likely to fully participate in an additional improvement period.
The record is also clear that petitioner did not establish a substantial change in circumstances
since his preadjudicatory improvement period. As stated above, petitioner failed all of his drug
tests throughout the proceedings. Additionally, a CPS worker testified that petitioner failed to
make any progress in his parenting and adult life skills classes. Petitioner’s failure to comply
with the terms and conditions of his preadjudicatory improvement period demonstrated that he
was unlikely to fully comply with an additional improvement period. For these reasons, we find
no error in the circuit court’s finding that petitioner failed to show any substantial improvement
or in denying petitioner an additional improvement period.

         Finally, petitioner argues that the circuit court “failed to correctly order that the
Department of Health and Human Resources provide all resources within their power.” We do
not agree. West Virginia Code § 49-4-604(b)(7) sets forth the situations in which the DHHR is
absolved of its statutory duty to make reasonable efforts to preserve the family, none of which
apply to the current matter. As such, the DHHR had a duty to make such efforts below.
However, as stated above, the circuit court ordered the DHHR to provide services to petitioner,
including inpatient and outpatient rehabilitation services, parenting and adult life skills classes,
domestic violence counseling classes, and bus passes. Further, West Virginia Code § 49-4­
610(4)(A) requires a parent that has been granted an improvement period be responsible for the
initiation and completion of all terms of the improvement period. Here, the record clearly
indicates that the DHHR offered services, but that petitioner either failed to take advantage of
them or only participated sporadically. Therefore, we find no error by the circuit court to order
adequate services.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 23, 2017, dispositional order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: September 5, 2017


CONCURRED IN BY:

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

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