                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re T.S.                                                                          FILED
                                                                                 June 24, 2020
No. 19-0863 (Preston County 17-JA-6)                                            EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioner Father R.S., by counsel Justin Gregory, appeals the Circuit Court of Preston
County’s September 4, 2019, order terminating his parental, custodial, and guardianship rights to
T.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, Richard M. Gutmann, 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 terminating his parental,
custodial, and guardianship rights and failing to take evidence to determine whether he
successfully completed his improvement periods. 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 asserts two additional assignments of error on appeal. However, in support of
both of these assignments of error, petitioner fails to cite to any applicable authority in support of
his arguments. At best, petitioner generally asserts in relation to one of the assignments of error
that the circuit court “failed to comply with the provisions under the Interstate Compact for the
Placement of Children and the Uniform Custody Jurisdiction and Enforcement Act.” However,
petitioner fails to include citations to either statute or, more specifically, cite to any specific
provision of either statute that was allegedly disregarded. This blanket assertion without specific
citation to authority is insufficient. Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure requires 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 . .
       . [and] must contain appropriate and specific citations to the record on appeal . . . .

                                                                                     (continued . . . )
                                                  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.

        The facts relevant to petitioner’s current appeal were largely laid out in his prior appeal to
this Court. See In re T.S., 241 W. Va. 559, 827 S.E.2d 29 (2019). In January of 2017, the DHHR
initiated abuse and neglect proceedings against petitioner upon allegations of domestic violence
in the home. Id. at 30-31, 827 S.E.2d at 560-61. According to the DHHR, V.A.—another child in
the home who is not at issue on appeal—witnessed petitioner “punch her mother in the face
‘causing bruises and marks,’” among other allegations. Id. at 31, 827 S.E.2d at 561. V.A. gave
other detailed statements regarding the domestic violence in the home. Id. As to T.S., the DHHR
alleged that he was home during the domestic violence and was observed to be distressed and
covered in coal dust, which the DHHR alleged was emotionally harmful. Id. When the DHHR
attempted to implement a temporary protection plan for the children, both parents refused to
cooperate or otherwise name a relative with whom the children could be placed. Id.

        The record shows that the circuit court granted petitioner a preadjudicatory improvement
period. At the conclusion of this improvement period, despite the fact that the circuit court held a
hearing and “the parties did not have any witnesses to call,” petitioner later asked that “the
adjudicatory hearing be ‘repurposed’ into an evidentiary hearing” to determine if his
preadjudicatory improvement period was successfully completed. Id. The circuit court granted
that request and set the matter for a hearing on June 22, 2017.

        Before the hearing convened, the guardian filed an amended petition alleging that
petitioner and the mother “subjected the children to medical abuse and neglect and to physical


       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, the 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. Here, petitioner’s brief in regard to these two additional assignments of
error is inadequate as it fails to comply with Rule 10(c)(7) and our December 10, 2012,
administrative order. Accordingly, the Court will not address these assignments of error on
appeal.




                                                  2
abuse.” Id. Essentially, the allegations concerned the parents providing medical histories of the
children’s alleged behaviors in order to obtain diagnoses and medications for both children that,
once the children were placed in foster care, were deemed inaccurate and unnecessary. Id.
According to the record on appeal in this matter, as a result of the parents’ descriptions to
medical professionals, T.S. was diagnosed, among many other things, as autistic. The record
further shows that both children were unnecessarily prescribed multiple medications, including
antipsychotic drugs. According to the amended petition, the parents “sought out diagnoses for
the children in order to reduce the children’s energy levels and to provide income,” as the
petition further alleged that “due to T.S.’s diagnosis of autism, the [parents] were able to secure a
large award from the State of West Virginia, which allowed the [parents] to purchase the family
home.” Again, as noted above, once removed from petitioner’s care, medical personnel
determined that “the children did not suffer from most of the diseases with which they had been
diagnosed” and “most of the children’s medicines [were] drastically reduced or discontinued.”
Id. Further, the amended petition included new disclosures by V.A. regarding petitioner’s
physical abuse of both children. Id.

       On June 22, 2017, the circuit court held an evidentiary hearing “in order to determine the
question of whether the [parents] had successfully completed their respective improvement
periods.” According to the order on appeal in this matter, the circuit court heard testimony from
the children’s psychologist and found that neither parent had successfully completed their
improvement period. 3

       At the subsequent adjudicatory hearing, petitioner stipulated that

       the infant respondents have been exposed to neglect and/or abuse due to the
       following deficiencies:

               a. He [the petitioner] admits that the DHHR, the Guardian ad
               Litem, and . . . [V.A.’s] therapist all have addressed concerns
               regarding the need for [petitioner] to make therapeutic admissions
               during family counseling sessions, recognizing that his prior
               actions have traumatized . . . [V.A.].

               b. He admits that . . . [V.A.] has suffered emotional harm due to his
               actions.

Id. at 561-62, 827 S.E.2d at 31-32. As such, petitioner was adjudicated as an abusing parent and
granted a post-adjudicatory improvement period. Petitioner agreed to participate in services “to
alleviate and improve his areas of deficiencies” set forth in his stipulation, including that he
continue with domestic violence courses, among other services.



       3
        The order on appeal further indicates that, “[a]lthough the [c]ourt held an evidentiary
hearing on the record, no order was entered” in regard to the June 22, 2017, hearing.



                                                 3
        Thereafter, the matter proceeded to a series of dispositional hearings during which the
circuit court also heard petitioner’s motion for an extension of his post-adjudicatory
improvement period. During the hearings, the DHHR presented testimony from its employees
that provided petitioner with services throughout the proceedings and the children’s
psychologist. At the close of the DHHR’s case, the circuit court did not permit petitioner to call a
specific witness or to testify himself. Id. at 562, 827 S.E.2d at 32. Petitioner appealed the circuit
court’s subsequent dispositional order and, based certain procedural issues, this Court remanded
the matter with instructions to forthwith hold a new dispositional hearing for the limited purpose
of affording petitioner “a full and complete opportunity to present witnesses and to testify on his
own behalf.” Id. at 565, 827 S.E.2d at 35.

        Upon remand, the circuit court held a dispositional hearing in July of 2019 in compliance
with this Court’s directives. During the hearing, petitioner presented testimony from the
children’s psychologist, his therapist, a DHHR employee, and himself. Based upon the evidence
presented, 4 the circuit court found that, “[t]hroughout the case, [the parents] have denied that any
domestic violence occurred in the home.” This was in spite of V.A.’s consistent, detailed
disclosures of witnessing domestic violence in the home, in addition to her disclosures of
physical abuse of the children. Further, the children’s therapist testified that she witnessed
bruising to the mother’s face and that, based on her interactions with the child, she believed that
“V.A. suffered significant domestic violence” in the home. In fact, given how traumatic
petitioner’s abuse of V.A. was, the multidisciplinary team had to develop a schedule for how the
mother would arrive at the psychologist’s office with V.A. in order to keep the child from seeing
petitioner. Despite this instruction, the mother nonetheless brought petitioner with her to one of
her sessions and, when questioned as to why she brought petitioner with her, indicated that she
“didn’t have a choice, that [petitioner] had threatened to shoot himself” if the mother did not
bring him.

        During petitioner’s meeting with the psychologist, he was confronted with V.A.’s
specific disclosures of domestic violence in the home but “continually shook his head and denied
that the incidents occurred.” More specifically, petitioner “denied that he and his wife were
involved in any activity which would have caused V.A. emotional harm.” According to the
psychologist, the session with petitioner caused V.A. to regress in her own therapy. The
psychologist did not continue therapy with petitioner “because she did not believe that any
progress could be made.” Although the psychologist indicated that petitioner did not specifically
need to admit that domestic violence occurred in the home, she did say that he needed to “be able
to demonstrate empathy to the point that it could be productive for [V.A.] to meet with him
without being shut down emotionally and in her recovery.” Petitioner’s therapist also testified


       4
         Some of the evidence cited in the order on appeal is taken from the earlier dispositional
hearings that occurred prior to petitioner’s first appeal. This is in keeping with this Court’s
instruction that “the circuit court, upon remand, need not require the DHHR to again present its
witnesses as it may rely upon the complete transcripts of the earlier dispositional hearings.” T.S.,
241 W. Va. at 564-65, 827 S.E.2d at 34-35.




                                                 4
that petitioner “stated he was attending therapy because of a Child Protective Services referral
that involved domestic violence but . . . denied engaging in any domestic violence.”

        An individual who provided petitioner with services, including individualized parenting
education, adult life skills education, and supervised visitation, testified to her involvement in
petitioner’s improvement period. Although the provider reported that petitioner was compliant
with services, the provider testified that he denied any domestic violence in the home and that,
because of his failure to “admit to [his] role in the case,” petitioner did not receive a certificate
for completing individualized parenting services. According to this provider, petitioner displayed
controlling behavior during services, “which is a possible sign of domestic violence.”
Additionally, during one supervised visit, petitioner instructed V.A. to stop running. The
provider observed V.A. display a strong reaction to petitioner’s request, including “cowering,”
“appearing scared,” and stating that she did not “want to get [her] butt beat.” Another DHHR
employee testified that termination of petitioner’s rights was recommended because he “refused
to make therapeutic admissions” and that this failure, coupled with his failure to “acknowledge
any issues regarding domestic violence during the improvement period meant that he was unable
to correct the issues in the home.” Multiple witnesses also testified that “goodbye” or “closure”
visits were scheduled for the parents with the children following the initial disposition that
petitioner previously appealed. According to the witnesses, petitioner did not attend these visits
with the children, despite the DHHR’s rescheduling them several times and contacting petitioner
by phone to ensure he attend. A DHHR employee further testified that petitioner had not
contacted the DHHR to inquire about the children since March of 2018.

        Petitioner testified and, essentially, denied any domestic violence, physical abuse, or
inappropriate discipline in the home. In response to whether he would be willing to continue
family therapy, petitioner testified that “he did not see a point in continuing therapy.” Petitioner
also indicated that he and the mother remained married and cohabitating. Given that the mother
was barred from having custody of the children by virtue of her prior disposition under West
Virginia Code § 49-4-604(b)(5) (2019), 5 petitioner was questioned as to whether he understood
that the children could not live in the home as long as the mother remained there. Petitioner
responded, “Why? She’s my wife.” Most importantly, petitioner testified that he did not recall
doing anything that would cause V.A. emotional harm. Petitioner argued that he complied with
all services below and that his successful compliance required T.S.’s return to his custody.

        Ultimately, the circuit court found that petitioner stipulated to his need to make
therapeutic admissions to his conduct and its impact on the children in order to remedy the
conditions of abuse and neglect, yet “[d]espite [his] official acknowledgements, throughout the
improvement period, [petitioner] refused to admit to any of the issues that led to the case.”
Because petitioner denied any domestic violence occurred in the home or that any incidents
occurred that may have caused V.A. to suffer emotional harm, he failed to acknowledge the
issues giving rise to the case. According to the circuit court, this resulted in the conditions being


       5
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5,
2020, including renumbering the provisions, the amendments do not impact this case.



                                                 5
untreatable. Further, this evidenced petitioner’s failure to “demonstrate any change in attitude,
acceptance of responsibility . . . , or any change that would lead the [c]ourt to believe that T.S.
would be safe” if returned to his custody. The circuit court additionally held that it “previously
found that [petitioner] did not successfully complete his improvement period” and that “any
further provision of services would be an exercise in futility because at the most basic level,
[petitioner] refuses to acknowledge any deficiencies in his parenting.” In finding that termination
of petitioner’s parental, custodial, and guardianship rights was in the child’s best interest, the
circuit court noted that T.S. indicated that he did not wish to have contact with petitioner and that
the child was well bonded with his sibling and guardians. Further, petitioner had not seen the
child for over a year, and the circuit court found that disrupting his placement would be
detrimental to his wellbeing. As such, the circuit court terminated petitioner’s parental, custodial,
and guardianship rights to T.S. 6 It is from the September 16, 2019, dispositional order that
petitioner appeals.

       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).

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
because the DHHR stipulated that he was compliant with services and a service provider testified
that he completed all the goals of his services, with the exception of admitting that domestic
violence occurred in the home. As such, he asserts that the conditions of abuse and neglect at
issue were corrected by the time of the dispositional hearing. Further, petitioner alleges that the
DHHR did not make reasonable efforts to provide him with necessary services. According to
petitioner, despite the circuit court’s order that the DHHR facilitate family counseling as soon as


       6
         The mother’s parental rights to T.S. remain intact as the circuit court imposed
disposition in regard to her pursuant to West Virginia Code § 49-4-604(b)(5) (2019) by
transferring legal and physical custody to the father of V.A. According to respondents, the
permanency plan for the child is to remain in that home under a legal guardianship.



                                                 6
possible, the DHHR waited over ten months to begin family counseling with him. Petitioner
further argues that the family counseling he did receive lasted only one hour and that, within that
hour, he was required to “do what the DHHR wanted him to do” over the course of his entire
improvement periods that lasted more than one year. Upon our review, we find no merit to this
assignment of error.

        First, the record is clear that petitioner did not attain all the goals of his improvement
period nor did he correct the conditions of abuse and neglect at issue. On appeal, petitioner seeks
to complicate what is an incredibly straightforward set of circumstances. Pursuant to his
stipulation at adjudication, petitioner admitted that he abused and/or neglected the children by
virtue of the fact that his actions caused V.A. emotional harm and that he needed “to make
therapeutic admissions” to this conduct in order to facilitate the children’s wellbeing. Regardless
of any compliance petitioner exhibited with other terms and conditions of his improvement
periods, the record could not more clearly demonstrate that the one thing petitioner was
unwilling to do was the most important thing asked of him: make therapeutic admissions to the
impact of his conduct.

         Further, petitioner’s argument about the delay in family therapy is disingenuous, as it
ignores the practical reasons for the delay. The child’s psychologist testified extensively about
the delays caused by beginning therapy with V.A. to ensure that the child was comfortable
discussing her abuse. Clear from the record is the fact that the child’s therapy was scheduled
according to her ability to appropriately process petitioner’s abuse, and we find no error in the
fact that it did not progress as quickly as petitioner demanded. Petitioner’s argument also ignores
the fact that his own conduct and refusal to cooperate frustrated the process, leading to further
delays. As an example, the psychologist scheduled an early session between V.A. and her mother
that petitioner was not invited to attend because of the potential impact on the child; nonetheless,
petitioner appeared. Further, because of petitioner’s past denials of his conduct, the psychologist
testified that she decided to forego having petitioner and the child go over V.A.’s disclosures
together. Instead, the psychologist addressed this with petitioner outside of the child’s presence
because “there was too much of a risk of upsetting rather than helping” the child should
petitioner continue to accuse her of lying. This therapy session was intended as “[t]he first stage”
of the process, wherein petitioner would need to “admit responsibility and [his] role of causing
the trauma for the child, and then to apologize.” However, instead of “verbaliz[ing] . . . any sense
of wrongdoing” in order to support V.A. and allow her to process his abuse, petitioner instead
denied all wrongdoing. According to the therapist, in light of petitioner’s refusal to meet this
minimal requirement, there was no possible way that petitioner could make any progress in
therapy with V.A. In fact, the therapist testified that such therapy could have been detrimental to
the child by virtue of exposing her to petitioner’s negativity. What this evidence shows is that the
reason petitioner’s family therapy sessions lasted only one hour, in total, is because petitioner
refused to meet the most basic requirement of the therapy and, crucially, the entire proceedings
below.

        Based on the extensive evidence set forth above, we agree with the circuit court that
petitioner displayed a total failure to acknowledge the conditions of abuse and neglect at issue.
As this Court established,



                                                 7
       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable
       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Given that
the record overwhelmingly shows that petitioner repeatedly failed to acknowledge the conditions
of abuse and neglect at issue, it is clear that his assertion that he remedied those conditions is
without merit. Indeed, the circuit court specifically found that petitioner not only failed to
remedy the conditions of abuse and neglect but that there was no reasonable likelihood he could
do so in the future. This was based, in part, upon his failure to even acknowledge the issues.
Further, because the conditions persisted, the circuit court found that the child’s welfare required
that petitioner’s parental rights be terminated. We agree, and note that West Virginia Code § 49-
4-604(b)(6) (2019) permits circuit courts to terminate parental rights upon these findings.
Additionally, this Court has 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 (2019)] . . . 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) (2019)] . . . 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). As such, it is clear that the
circuit court did not err in terminating petitioner’s parental rights.

        Finally, the Court finds no merit to petitioner’s argument that the circuit court erred in
failing to take evidence to determine whether he successfully completed his improvement period.
According to petitioner, he twice requested the circuit court “to allow an evidentiary hearing to
determine whether [he] had satisfied the conditions of the improvement period and whether he
had made sufficient improvement to justify the return of his child.” This argument simply has no
basis in the record or applicable authority. As set forth above, the circuit court not only held a
hearing in June of 2017 “to determine the question of whether the [parents] had successfully
completed their respective improvement periods,” but it also took extensive evidence at multiple
dispositional hearings on this exact issue. Petitioner seeks to impose a duty on the circuit court to
hold a hearing for no purpose other than to reach a determination as to his success in his
improvement periods, but he cites to no rule, statute, or other authority imposing such a duty.

       Petitioner is correct that this Court has held that

              “[a]t the conclusion of the improvement period, the court shall review the
       performance of the parents in attempting to attain the goals of the improvement
       period and shall, in the court’s discretion, determine whether the conditions of the

                                                  8
       improvement period have been satisfied and whether sufficient improvement has
       been made in the context of all the circumstances of the case to justify the return
       of the child.” Syl. Pt. 6, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).

In re J.G., 240 W. Va. 194, 809 S.E.2d 453 (2018). This case, however, does not preclude a
circuit court from taking such evidence at a hearing convened for another purpose, such as a
dispositional hearing. As set forth above, the circuit court took extensive evidence at multiple
dispositional hearings to determine whether petitioner complied with services sufficiently to
justify the child’s return to his care. Ultimately, however, the circuit court found that petitioner
had not corrected the conditions of abuse and neglect and that returning the child to his care
would be contrary to the child’s best interests. As such, it is clear that petitioner’s assignment of
error is without merit.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 4, 2019, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: June 24, 2020


CONCURRED IN BY:

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




                                                 9
