                  STATE OF WEST VIRGINIA                                              FILED
       SUPREME COURT OF APPEALS
                                                                              February 16, 2016
In re: T.P.                                                                      RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
No. 15-0961 (Jefferson County 14-JA-33)


                              MEMORANDUM DECISION
        Petitioner Father M.D., by counsel Nancy A. Dalby, appeals the Circuit Court of
Jefferson County’s August 28, 2015, order terminating his parental rights to T.P.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, Ruth A.
McQuade, filed a response on behalf of the child also in support of the circuit court’s order. The
DHHR and the guardian also filed a joint supplemental appendix. On appeal, petitioner alleges
that the circuit court erred in denying his request for T.P.’s caretaker to testify below and in
terminating his parental rights instead of imposing a less-restrictive dispositional alternative,
including allowing him to voluntarily relinquish his custodial and guardianship rights.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.

        In May of 2014, the DHHR filed an abuse and neglect petition against T.P.’s parents. At
the time, eight-year-old T.P. lived with his mother and her boyfriend. According to the petition,
the child’s mother and boyfriend engaged in chronic domestic violence in the home and the
mother physically abused T.P. Additionally, petitioner had not had contact with T.P. for several
months and, in fact, only became aware that he was the child’s father when T.P. was six years
old. After paternity was established, petitioner saw the child for a few brief visits and had no real
bond with the child. Petitioner was also over $11,000 in arrears in child support at the time. As

       1
         The proceedings below concerned an additional child, V.P., who is not petitioner’s
biological child and over whom petitioner exercised no custodial or guardianship rights. As such,
this memorandum decision concerns only petitioner’s parental rights with regard to his biological
child, T.P.
       2
         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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such, the DHHR alleged that petitioner abandoned T.P. Thereafter, in August of 2014, the circuit
court held an adjudicatory hearing and found petitioner abandoned T.P.

        In September of 2014, petitioner orally offered to voluntarily relinquish his parental
rights to T.P. Shortly thereafter, he filed a written relinquishment expressing the same. After the
circuit court accepted petitioner’s relinquishment, the guardian and the DHHR submitted a joint
motion to modify the dispositional order insomuch as petitioner’s relinquishment was not made
knowingly and voluntarily given his admitted lack of knowledge concerning the allegations
contained in the petition. As such, the circuit court rescinded petitioner’s relinquishment and
thereafter granted him an improvement period. As part of the improvement period, petitioner was
provided a schedule of visitation and phone calls in order to initiate regular contact with T.P.
However, petitioner failed to regularly contact the child, which resulted in emotional stress to
T.P., who was already suffering from adjustment disorder and other behavioral difficulties. The
multidisciplinary team (“MDT”) informed petitioner of the negative effects his actions caused
and attempted to assist him in making regular contact. However, petitioner did not improve and,
in fact, failed to complete the paperwork necessary to initiate a home study despite his
knowledge that a home study was necessary if T.P. was going to live in his home.

         Ultimately, the circuit court held a dispositional hearing in July of 2015 and terminated
petitioner’s parental rights to T.P., though the circuit court did grant petitioner post-termination
visitation with the child. 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
declines to address petitioner’s assignment of error alleging that the circuit court erred in denying
his request to call an undisclosed witness at disposition.3


        3
            Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that


(continued . . . )
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        Additionally, the Court finds no error in the circuit court terminating petitioner’s parental
rights. Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood the
conditions of abuse or neglect can be substantially corrected when “[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 abuse or neglect of the child.” Here, the circuit court was presented with sufficient
evidence to make this finding in regard to petitioner based upon his admitted failure to comply
with the DHHR’s services designed to facilitate a bond between him and the child. Specifically,
petitioner admitted that he “had difficulties” contacting his son to develop a meaningful
relationship, despite the fact that the DHHR facilitated both visitation and telephone contact
between petitioner and his son. Simply put, petitioner failed to comply with these services and
the evidence below established that his failure to contact his son had a negative impact on the
child. Ultimately, petitioner’s failures in this regard, and the fact that he failed his home study,
led the circuit court to find that petitioner “failed to comply with the specific steps” of his
improvement period. Further, the circuit court found that termination of petitioner’s parental
rights was in the child’s best interests. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit
courts are directed to terminate parental rights upon these findings.

       Further, we have previously held that

       “[c]ourts are not required to exhaust every speculative possibility of parental
       improvement . . . where it appears that the welfare of the child will be seriously
       threatened, and this is particularly applicable to children under the age of three


               [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.

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 2 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,
paragraph 7 states that “[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. Specifically, petitioner provides no citation to the
record in support of this assignment of error and, in fact, did not include the dispositional
transcript so that the circuit court’s decision could be properly evaluated. Further, petitioner fails
to cite to any legal authority in support of this argument. Thus, we decline to address petitioner’s
assignment of error concerning the circuit court’s evidentiary determination as it was not
properly developed on appeal.


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       years who are more susceptible to illness, need consistent close interaction with
       fully committed adults, and are likely to have their emotional and physical
       development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
       164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Therefore, it was not error for
the circuit court to terminate petitioner’s parental rights instead of imposing a less-restrictive
dispositional alternative. On appeal, petitioner simply alleges that the current placement for the
child is against his best interests and that, as such, it was error to terminate his parental rights.
This argument, however, ignores the fact that petitioner’s own actions left the circuit court no
choice other than to terminate his parental rights, based upon the findings outlined above.
Moreover, the fact that petitioner believes the child’s current placement to be less than ideal has
no bearing on his own inability to correct the conditions of abuse and neglect that necessitated
the termination of his parental rights.

         Further, petitioner alleges that the circuit court erred in failing to allow him to voluntarily
relinquish his parental rights at disposition. However, petitioner’s argument ignores the fact that
he previously entered into such a relinquishment, but it was later rescinded when he admitted
that he did not enter into the same with full knowledge of the allegations against him. Most
importantly, though, is the fact that the circuit court specifically found that “a . . . relinquishment
. . . does not achieve permanency” for the child. As such, we find no error in the termination of
petitioner’s parent rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 28, 2015, order is hereby affirmed.


                                                                                             Affirmed.

ISSUED: February 16, 2016


CONCURRED IN BY:

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




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