                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: E.K., O.K., & G.B.
                                                                                      FILED
                                                                                 November 23, 2015
                                                                                 RORY L. PERRY II, CLERK
No. 15-0605 (Clay County 14-JA-63, 14-JA-64, & 14-JA-65)                       SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother S.B., by counsel Kevin W. Hughart and Christen M. Justice, appeals
the Circuit Court of Clay County’s June 15, 2015, order terminating her parental rights to two­
year-old E.K., one-year-old O.K., and six-year-old G.B. 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, 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 her parental rights without considering
less-restrictive dispositional alternatives.1

        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 2014, Petitioner Mother entered into a protection plan with the DHHR
under which she agreed to find safe, suitable housing for her and her children by November 5,
2014. By November 10, 2014, petitioner had failed to comply with that protection plan, and, on
that date, the DHHR filed an abuse and neglect petition against her and the children’s biological
father, J.K. The DHHR alleged in that petition that petitioner and J.K failed to provide a safe,
suiting home for the children; engaged in domestic violence that affected their parenting; used
marijuana while caring for the children; and had been found to be abusing parents in a 2011
abuse and neglect proceeding.

       On November 17, 2014, the circuit court held a preliminary hearing. At the outset of that
hearing, petitioner waived her right to contest the children’s continued custody with the DHHR.
The circuit court accepted petitioner’s waiver, but also ordered petitioner to remain drug free and
to submit to drug screens. On December 4, 2014, petitioner failed to submit to a drug screen as

       1
         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.
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directed. Petitioner also failed to meet with her service provider in November of 2014, which
delayed the beginning of the DHHR’s parental services for several weeks.

        In mid-December of 2014, the circuit court held an adjudicatory hearing. Petitioner
stipulated to abuse and neglect of the children by using marijuana while caring for the children;
failing to provide a home with running water, electricity, or gas; engaging in domestic violence
in the children’s presence; and failing to correct the conditions that led to the 2011 abuse and
neglect proceedings. Petitioner also admitted that she would test positive for marijuana if drug
screened that day. Based on the foregoing stipulations, the circuit court adjudicated petitioner as
an abusing parent and set the matter for disposition.

       In January of 2015, at the time set for disposition, the circuit court granted petitioner’s
motion for a post-adjudicatory improvement period. The services offered as part of her
improvement period included classes for parenting and adult life skills. The circuit court further
ordered that petitioner remain drug and alcohol free, submit to drug screens, find suitable
housing in sixty days, and not reside with anyone due to her history of domestic violence.

         In April of 2015, the circuit court held a final hearing. By the time of this hearing,
petitioner had not visited with her children since January of 2015, and she had completed only
three classes for parenting and adult life skills. Evidence established that petitioner had resided
with a man in a hotel from at least February of 2015 until March of 2015 in violation of the
circuit court’s order not to reside with anyone. Sometime thereafter, she moved by herself into a
trailer in Montgomery, West Virginia. A Child Protective Services (“CPS”) worker testified that
petitioner’s trailer was not suitable for children and needed extensive repairs. Petitioner testified
that she intended to repair the trailer to suitable condition on her own, despite her lack of
experience repairing the issues at hand (particularly electrical repairs) and her lack of income
because she was not employed. At the conclusion of the hearing, the circuit court revoked
petitioner’s improvement period and moved to disposition. The circuit court ultimately found no
reasonable likelihood that petitioner could substantially correct the conditions at issue and that
the children’s welfare required termination. Based on those findings, by order entered in June of
2015, the circuit court terminated her parental rights to all three children. This appeal followed.

       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



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       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 first assigns error to the circuit court’s revocation of her post­
adjudicatory improvement period and resulting termination of her parental rights to the children.
With regard to termination of an improvement period, we have held that “[i]t is within the court's
discretion to grant an improvement period within the applicable statutory requirements; it is also
within the court's discretion to terminate the improvement period . . . if the court is not satisfied
that the [subject parent] is making the necessary progress.” Syl. Pt. 2, in part, In re Lacey P., 189
W.Va. 580, 433 S.E.2d 518 (1993); see also West Virginia Code § 49-6-12 (providing circuit
courts discretion in granting/denying improvement periods to respondent parents). Further, with
regard to the consideration of evidence in these proceedings, “in the context of abuse and neglect
proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and
rendering findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing
Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael
D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (stating that “[a]
reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely
situated to make such determinations and this Court is not in a position to, and will not, second
guess such determinations.”).

        In this case, petitioner stipulated to the allegations in the petition, and the circuit court
granted her a post-adjudicatory improvement period. However, both before and during that
improvement period, petitioner failed to comply with the majority of the circuit court’s orders.
She failed to provide a drug screen as directed in early December of 2014. She completed only
three parenting and adult life skills classes in as many months. She resided with another person
in direct violation of the circuit court’s order not to reside with anyone. She failed to maintain
contact with the DHHR for much of February and March of 2015, and, importantly, she failed to
obtain suitable housing or employment. It is unclear what steps, if any, petitioner had taken by
April of 2015 to improve the conditions that led to the instant abuse and neglect. Given the
circumstances presented herein, we find that the circuit court was well within its discretion to
terminate petitioner’s improvement period for failure to comply its terms and conditions.

        Moreover, while petitioner argues that termination of her parental rights was not the
least-restrictive dispositional alternative in this matter, the record on appeal supports the circuit
court ruling. We have explained that “[t]ermination . . . may be employed without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .
that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996). We have also made clear that West Virginia Code §§
49-6-12(b), 49-6-12(c), and 49-6-5(c) grant circuit courts discretion in determining whether to
permit improvement periods as less-restrictive dispositional alternatives to termination in abuse
and neglect proceedings. Further, “courts are not required to exhaust every speculative
possibility of parental improvement before terminating parental rights where it appears that the
welfare of the child will be seriously threatened . . . .” Syl. Pt. 1, in part, In Re: R.J.M., 164
W.Va. 496, 266 S.E.2d 114 (1980). As noted above, petitioner failed to comply with the circuit

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court’s orders or the terms and conditions of her improvement period. In addition to other
concerns apparent from the record, she failed to find suitable housing or employment in the
many months these children were removed from her care. At the time of disposition, petitioner
continued to have no suitable means to provide even appropriate shelter for these children. The
evidence established that that there was no reasonable likelihood to believe that conditions of
abuse and neglect could be substantially corrected in the near future, and that termination was
necessary for the child’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts
are directed to terminate parental rights upon such findings. Therefore, no less-restrictive
dispositional alternatives were necessary.

         Petitioner lists a second assignment of error in her brief to this Court: that the circuit
court erred in denying her a post-adjudicatory improvement period. However, petitioner provides
no argument or citation to law or fact in the body of her brief in support of her second
assignment of error. This Court has previously stated that “issues . . . mentioned only in passing
but [ ] not supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196
W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (citations omitted). Moreover, Rule 10(c)(7) of the
West Virginia Rules of Appellate Procedure provides that a petitioner’s 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.

Because petitioner fails to satisfy Rule 10(c)(7), we decline to consider the merits of any alleged
error with regard to the circuit court denying petitioner a post-adjudicatory improvement period.
Notwithstanding our ruling on this issue, we note that petitioner was, in fact, granted a post­
adjudicatory improvement period. Therefore, her contention that the circuit court erred in
granting her such an improvement period is fatally flawed given the clear record on appeal. We
would find no merit to that claim.

       For the foregoing reasons, we find no error in the circuit court’s June 15, 2015, order, and
we hereby affirm the same.


                                                                                        Affirmed.

ISSUED: November 23, 2015


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis

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Justice Brent D. Benjamin

Justice Menis E. Ketchum

Justice Allen H. Loughry II





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