                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS


In re L.H.-1                                                                             FILED
                                                                                      April 28, 2020
No. 19-0695 (Kanawha County 18-JA-622)                                              EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA




                                MEMORANDUM DECISION


        Petitioner Father R.H., by counsel Michael M. Cary, appeals the Circuit Court of Kanawha
County’s July 24, 2019, order terminating his parental rights to L.H.-1. 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 and a supplemental appendix. The guardian ad litem
(“guardian”), Jennifer R. Victor, 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 failing to afford him an
improvement period and in terminating his 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.

        In October of 2018, the DHHR filed a child abuse and neglect petition against petitioner
and the mother after the mother was observed injecting substances into her intravenous port at the
hospital following the birth of L.H.-2. The petition indicated that L.H.-1 was in the custody of
petitioner because the mother’s parental rights to that child had previously been terminated and
that he was believed to be the father of L.H.-2. 2 The DHHR further indicated that, upon
investigating the situation, petitioner refused to speak with Child Protective Services (“CPS”)

       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). Because the child at issue and her half-sibling share the same
initials, we will refer to them as L.H.-1 and L.H.-2, respectively, throughout this memorandum
decision.
       2
           Petitioner was considered a nonabusing parent in the prior proceedings against the mother.
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workers. Lastly, the DHHR alleged that petitioner failed to provide the children with the necessary
food, clothing, supervision, housing, and financial support.

        The circuit court held the adjudicatory hearing over several days between December of
2018 and May of 2019. 3 In March of 2019, the DHHR filed an amended petition against petitioner
alleging that he was incarcerated in federal prison and abandoned the child “by continuing to
engage in criminal activity which keeps him from being a parent to her.” 4 Ultimately, the circuit
court adjudicated petitioner as an abusing parent based upon findings that he abandoned the child
and failed to provide physical, emotional, psychological, or financial support to the child.

        In June of 2019, the circuit court held a dispositional hearing. A CPS worker testified that
petitioner had been a habitual criminal “since before [L.H.-1] was even born.” According to the
CPS worker, petitioner left the child with his mother for nearly three years and provided no support
to her. The CPS worker also noted that petitioner had been incarcerated for the majority of the
proceedings. During arguments, the guardian noted that petitioner “has done nothing for this child”
and might have “seen her a few times,” but did not care for the child. After the close of evidence,
the circuit court found that the DHHR attempted to provide petitioner with remedial and
reunification services, but that his criminal activity and successive incarcerations prevented him
from participating and that he had not responded or followed through with the family case plan.
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 child’s welfare. It is from the July 24, 2019, dispositional order
that petitioner appeals. 5

       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

       3
        The adjudicatory hearing was continued several times to allow for paternity testing of
L.H.-2. The results revealed that petitioner was not the father of L.H.-2, and an amended petition
was filed to add her unknown father to the proceedings. Accordingly, L.H.-2 is not at issue on
appeal.
       4
         The record is unclear regarding petitioner’s conviction. In his brief on appeal, petitioner
claims that his “incarceration during the proceeding was not due to a violent crime or drug charge.”
Petitioner claims that he was incarcerated due to an absconding charge after he did not report to a
halfway house upon being released into a rehabilitation program. However, petitioner does not
divulge information regarding his original criminal charge and subsequent conviction.
       5
         The mother’s parental rights to L.H.-1 were previously terminated in 2017. Her parental
rights to L.H.-2 were terminated in the proceedings below. The parental rights of L.H-2’s unknown
father were also terminated below.


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       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 not affording him an
improvement period. According to petitioner, his ability to contact the DHHR or his family was
limited due to his incarceration. Petitioner contends that prior to February of 2018, he provided
financially for the child by giving money to the grandmother who cared for the child. Petitioner
also claims that he was undergoing “substance abuse rehabilitation throughout the course” of the
child’s life so that he could better provide for her “upon completion of such a program.” Petitioner
contends that improvement periods are an opportunity for a parent to modify his/her behavior so
as to correct the conditions of abuse and neglect and that the circuit court erred in not affording
him the same. We disagree.

        Pursuant to West Virginia Code § 49-4-610(2)(A) and (B), a circuit court may grant a
respondent parent a post-adjudicatory improvement period when the parent (1) files a written
motion requesting an improvement period and (2) demonstrates by clear and convincing evidence
that he/she is likely to fully participate in an 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 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 . . . .”).

        Having reviewed the record, we find that the circuit court did not abuse its discretion in not
affording petitioner an improvement period. The record is clear that petitioner never asked for an
improvement period. Petitioner cites to no portion of the record demonstrating that he filed a
written motion requesting an improvement period or that he made an oral motion requesting the
same. “‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal,
will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n.20, 524 S.E.2d
688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d
650, 653 (2009). Accordingly, we find that petitioner is entitled to no relief in this regard.

        Petitioner next assigns as error the termination of his parental rights. Petitioner claims that
because he was a nonabusing parent in the prior child abuse and neglect proceedings against the
mother and had legal custody of the child, “he was a fit and adequate parent.” According to
petitioner, he attempted to contact the DHHR to the best of his ability and would have been willing
to participate in any services offered by the DHHR. Petitioner argues that the circuit court erred in
terminating his parental rights without first granting him the opportunity to participate in an
improvement period.

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        However, petitioner failed to cite to a single case or to the appendix record in support of
his assertion that the circuit court erred in terminating his parental rights. These failures are in
direct contradiction of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requiring
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, this 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. Id. “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 assertion 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 July
24, 2019, 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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