                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS                                      FILED
                                                                                      April 28, 2020
                                                                                    EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA
In re T.S., R.S., B.S., and A.S.

No. 19-0835 (Kanawha County 18-JA-57, 18-JA-58, 18-JA-59, and 18-JA-60)



                               MEMORANDUM DECISION


        Petitioner Father D.S., by counsel Joseph H. Spano Jr., appeals the Circuit Court of
Kanawha County’s June 28, 2018, order terminating his parental rights to T.S., R.S., B.S., and
A.S. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Jennifer R. Victor, filed a response on behalf of the children also in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating
services without justification and terminating his parental rights without first granting him an
improvement period. 2

       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.




       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 originally listed different assignments of error in his brief. However, he seems
to have abandoned those arguments as he did not address them in the argument section of his brief.
The above-listed assignments of error have been modified to more closely address petitioner’s
stated arguments.

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        In February of 2018, the DHHR filed a child abuse and neglect petition against petitioner
and the mother of T.S. 3 The DHHR alleged that T.S. disclosed physical abuse by the mother to his
teacher and other school personnel. Specifically, T.S. disclosed that he had “talked back” to his
mother while he was preparing for school and that she threatened to kill him, hit him in the head,
and attempted to strangle him by wrapping her hands around his throat. Several school personnel
corroborated the child’s disclosures and noted that he was crying extensively, was inconsolable,
and had broken blood vessels around his eyes, which could have been due to either the mother’s
abuse or the child’s crying. A Child Protective Services (“CPS”) worker interviewed T.S., who
made the same disclosures as noted above. The child further disclosed that his mother hit him in
the head about thirty times and would frequently make him take over her responsibilities, such as
laundry. The child also disclosed that petitioner had previously hit him and abused drugs. The CPS
worker interviewed petitioner in response to the child’s disclosures. Petitioner admitted he
previously had an alcohol abuse problem and that he had spanked T.S. in the past, but did not leave
any marks on him. Based on these facts, the DHHR concluded that petitioner had substance abuse
issues that prevented him from being an appropriate parent and that he had been physically violent
to one or more of his children in the past. Services such as parenting and adult life skills classes
and supervised visits were put in place for petitioner following the preliminary hearing.

        In March of 2018, the DHHR filed an amended petition against petitioner, alleging that he
was involved in a domestic violence incident following the filing of the initial petition. According
to the DHHR, petitioner head-butted his stepmother, put a gun in her mouth, and strangled her to
the point of unconsciousness. Petitioner was charged with malicious or unlawful assault, wanton
endangerment, unlawful restraint, domestic battery, domestic assault, brandishing, interfering with
emergency communications, and four counts of strangulation.

         The circuit court held an adjudicatory hearing in April of 2018. Petitioner initially began
to testify, but refused to comment on his pending criminal case. B.S.M., the nonabusing mother of
petitioner’s three younger children, testified that petitioner was physically abusive and that he
currently had no relationship or contact with R.S., B.S., and A.S. due to his violent behavior and
alcohol abuse. B.S.M. also testified that petitioner did not consistently pay child support and that
she only recently received some child support when it was taken out of a settlement won by
petitioner. A CPS worker testified regarding the allegations contained in the petitions. She stated
that, during her initial investigation, petitioner admitted to past issues with alcohol abuse and
domestic violence, but claimed that he no longer abused alcohol. However, the CPS worker opined
that it sounded like petitioner had been drinking when she spoke to him and that he smelled of
alcohol when she later served him with the petition. At the close of evidence, the circuit court
found that petitioner committed domestic violence in the presence of the children and was facing
criminal charges for his violent behavior. The circuit court further found that petitioner abused
alcohol and other substances, which negatively affected his ability to parent the children. Lastly,
the circuit court found that petitioner willingly failed to pay child support for the younger children
in a timely manner. Based on these findings, the circuit court adjudicated petitioner as an abusing


       3
        Petitioner has four biological children, all of whom are at issue on appeal. T.G. is the
mother of T.S., and B.S.M. is the mother of R.S., B.S., and A.S. B.S.M. was a nonabusing parent
during the proceedings below.


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parent. The circuit court suspended petitioner’s supervised visits with the children but continued
all other services.

        In May of 2018, the circuit court held a dispositional hearing. A CPS worker testified that
the DHHR was recommending termination of petitioner’s parental rights due to his severe issues
with domestic violence. The CPS worker noted that petitioner received services during the
proceedings, yet allegedly committed a very serious violent crime against his stepmother following
the petition’s filing. Further, the worker reported that T.S. “tend[ed] to mimic a lot of the behaviors
he has witnessed in the home” and “acts out or gets aggressive” because that is “all [T.S.] has
known.” The CPS worker also testified that T.S. harbored a lot of anger towards petitioner for his
actions and that petitioner did not have a relationship with B.S., R.S., and A.S. The circuit court
noted that the DHHR provided, or offered, remedial and reunification services to petitioner, such
as psychological evaluations, supervised visits, parenting and adult life skills classes, random drug
screens, substance abuse evaluations and treatment, and transportation assistance. Based on the
testimony adduced, as well as the evidence presented at prior hearings, the circuit court found that
petitioner failed to follow through with a reasonable family case plan or other rehabilitative efforts
and that he was habitually addicted to alcohol to the extent that it impaired his parenting skills.
Accordingly, the circuit court terminated petitioner’s parental rights upon finding that there was
no reasonable likelihood that he could correct the conditions of abuse and/or neglect in the near
future and that termination was necessary for the children’s welfare. Petitioner appeals that June
28, 2018, dispositional order. 4

       The Court has previously established the following standard of review in cases such as this:

               “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 terminating DHHR-provided
services when he produced negative drug screens throughout the proceedings and he was unable


       4
         T.S.’s mother has complied with her improvement period and is currently undergoing a
trial reunification with the child. The mother of R.S., B.S., and A.S., is a nonabusing parent, and
the permanency plan for those children is to remain in her care.


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to participate in services at times only because he was incarcerated for an “alleged” domestic abuse
charge. Petitioner contends that the circuit court erroneously used his incarceration as a basis for
terminating his services during the proceedings. Petitioner also claims that his counsel was
ineffective for failing to move the circuit court for an improvement period.

        However, petitioner’s brief is inadequate as it lacks citation to the record or applicable law.
Indeed, petitioner fails to provide a single citation in support of either of these arguments, and his
very brief suggestion that his counsel was ineffective for failing to request an improvement period
is not accompanied by any legal analysis. Petitioner’s failure to provide any support for his
argument is in violation of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, which
provides as follows:

       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,
       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.

Accordingly, we decline to address these arguments on appeal.

         Petitioner next assigns as error the circuit court’s termination of his parental rights without
first granting him an improvement period. Petitioner contends that he demonstrated that he was
likely to participate in an improvement period because he was compliant with services until he was
imprisoned. After being released on bond, petitioner attended all hearings and asked to continue
receiving services. However, petitioner contends that further services were denied based upon his
inability to comply with any services during his incarceration. Petitioner notes that he never failed
a drug screen during the proceedings. Further, while petitioner admits that he previously had an
alcohol-abuse problem, he claims that he has “since begun monitoring his intake of alcohol and is
no longer an abuser.” Lastly, petitioner contends that there was insufficient evidence to terminate
his parental rights absent his participation in an improvement period. According to petitioner, his
underlying criminal case is still ongoing and there is no evidence that petitioner’s corporal
punishment of T.S. was excessive. Moreover, petitioner claims his parenting skills are no longer
impaired by his previous alcohol abuse. We disagree.

        We have previously held 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) (“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) (It is within the court’s discretion to grant an improvement period within the applicable
statutory requirements.”).We have also held that a parent’s “entitlement to an improvement period
is conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence,
that the respondent is likely to fully participate in the improvement period.’” In re Charity H., 215
W. Va. 208, 215, 599 S.E.2d 631, 638 (2004).



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        Here, petitioner failed to demonstrate that he was likely to fully participate in an
improvement period. Following the preliminary hearing, several services were put in place for
petitioner. However, as of the dispositional hearing, the circuit court found that petitioner had
failed to adequately comply with his family case plan or rehabilitative efforts. Indeed, testimony
at the dispositional hearing indicated that petitioner engaged in domestic violence against his
stepmother and was charged with a myriad of crimes as a result, including four counts of
strangulation. To the extent petitioner argues that the circuit court erred in denying him services
on the basis of his incarceration, we find that his argument is without merit. The record reveals
that petitioner was incarcerated for approximately two weeks before he was released on bond, and
the circuit court continued all services except supervised visitation after the adjudicatory hearing.
Moreover, petitioner fails to cite to any portion of the record wherein he rebutted the CPS worker’s
testimony regarding his alcohol abuse. In sum, petitioner fails to demonstrate that the circuit court
abused its discretion in not affording him an improvement period, especially given the fact that
petitioner was provided numerous services throughout the proceedings but simply failed to
adequately comply with said services. Therefore, we find no error.

        We likewise find no error in the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights
upon findings that there is “no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination is necessary for the children’s
welfare. West Virginia Code § 49-4-604(c) provides that a circuit court may find that there is no
reasonable likelihood that the conditions of abuse and neglect can be substantially corrected when
“the abusing adult . . . [has] demonstrated an inadequate capacity to solve the problems of abuse
or neglect on their own or with help.” Such conditions exist when the “parent . . . ha[s] habitually
abused or [is] addicted to alcohol . . . to the extent that proper parenting skills have been seriously
impaired and the person . . . ha[s] not responded to or followed through the recommended and
appropriate treatment” or when “the abusing parent . . . ha[s] not responded to or followed through
with a reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent
the abuse or neglect of the child[ren].” W. Va. Code §§ 49-4-604(b)(1) and (3).

        The evidence set forth above also supports the circuit court’s findings that there was no
reasonable likelihood that petitioner could correct the conditions of abuse in the near future and
that termination was necessary for the children’s welfare. The record establishes that petitioner
demonstrated an inadequate capacity to solve the problems of abuse or neglect on his own or with
help and that he failed to follow through with services designed to address the conditions of abuse
and neglect. At the dispositional hearing, evidence was presented that petitioner continued to
engage in domestic violence and that T.S. mimicked aggressive behavior from having witnessed
such behavior in the home. Further, the circuit court found that petitioner was habitually addicted
to alcohol, which impaired his parenting skills. Moreover, the circuit court found that termination
was in the children’s best interests. This finding was supported by evidence that petitioner had no
relationship with the three younger children and that T.S. harbored anger toward petitioner for his
actions. Accordingly, there was adequate evidence upon which to base the termination of
petitioner’s parental rights.

       Although petitioner argues that his pending criminal case pending should not have been
used against him, we note that petitioner refused to testify regarding the matter and the circuit court
noted that it could take a negative inference regarding that refusal. We have previously held that,

                                                  5
in an abuse and neglect proceeding, an individual’s silence may be used as affirmative evidence
of that person’s culpability. See Syl. Pt. 2, In re K.P., 235 W. Va. 221, 772 S.E.2d 914 (2015). To
the extent petitioner claims that the matter should have been continued to allow for the resolution
of this criminal case, our rules governing child abuse and neglect proceedings provide that “[u]nder
no circumstances shall a child abuse and neglect proceeding be delayed pending the initiation,
investigation, prosecution, or resolution of any other proceeding, including, but not limited to,
criminal proceedings.” W.Va. R. P. for Child Abuse and Neglect Proc. 5.

        Moreover, while petitioner argues that he should have been granted a less-restrictive
alternative to the termination of his parental rights, such as an improvement period, we have
previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [West Virginia
       Code § 49-4-604] may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under [West
       Virginia Code § 49-4-604(c)] 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). Based on the foregoing, we find
no error in the circuit court’s termination of petitioner’s parental rights.

       Lastly, because the proceedings remain ongoing with regard to T.S.’s mother, this Court
reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of the
Rules of Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as defined
       in Rule 6, the court shall conduct a permanent placement review conference,
       requiring the multidisciplinary treatment team to attend and report as to progress
       and development in the case, for the purpose of reviewing the progress in the
       permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the dispositional order. As this Court has stated,

                [t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules
       of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement
       of an abused and neglected child following the final dispositional order must be
       strictly followed except in the most extraordinary circumstances which are fully
       substantiated in the record.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that




                                                 6
               [i]n determining the appropriate permanent out-of-home placement of a
       child under [West Virginia Code § 49-4-604(b)(6)], the circuit court shall give
       priority to securing a suitable adoptive home for the child and shall consider other
       placement alternatives, including permanent foster care, only where the court finds
       that adoption would not provide custody, care, commitment, nurturing and
       discipline consistent with the child’s best interests or where a suitable adoptive
       home [cannot] be found.

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child
is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400
(1991).

       For the foregoing reasons, we find no error in the decision of the circuit court, and its June
28, 2018, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 28, 2020


CONCURRED IN BY:

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




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