                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS
                                                                                       FILED
In re B.S. and D.S.                                                                 April 19, 2019
                                                                                   EDYTHE NASH GAISER, CLERK
No. 18-1006 (Braxton County 17-JA-26 and 17-JA-27)                                 SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA




                                MEMORANDUM DECISION


        Petitioner Mother M.S., by counsel Jared S. Frame, appeals the Circuit Court of Braxton
County’s October 24, 2018, order terminating her parental and custodial rights to B.S. and D.S.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy
M. Parsley, filed a response in support of the circuit court’s order and a supplemental appendix.
The guardian ad litem (“guardian”), David Karickhoff, 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 terminating her parental rights when she made substantial progress in her improvement
period and when she had a bond with the children.

        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.

       Prior to the initiation of the instant proceedings, the DHHR filed a child abuse and
neglect petition against petitioner in 2009 regarding B.S.2 At some point, petitioner was granted
an improvement period. Petitioner successfully completed her improvement period, and the child
was returned to her care after the petition against her was dismissed.

        In August of 2017, the DHHR filed the instant child abuse and neglect petition against
petitioner and the father. According to the petition, the children’s health or welfare was
threatened or harmed by petitioner’s refusal to provide the children with the necessary food,

       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
           D.S. was not born until after the dismissal of the prior proceedings.
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clothing, shelter, supervision, medical care, or education. Specifically, the DHHR alleged that
petitioner had a substance abuse problem and had twice been arrested for related issues.
Petitioner was first arrested in January of 2017 for driving under the influence with B.S. in the
car. She was later arrested again in March of 2017 for a probation violation and possession of a
controlled substance without a valid prescription. Petitioner pled guilty to the charges, was
sentenced to ninety days of incarceration, and was subsequently released in July of 2017. The
DHHR concluded that the children’s welfare was threatened due to petitioner’s arrests and
continued use of illegal controlled substances.

        The circuit court held an adjudicatory hearing in September of 2017, wherein petitioner
stipulated to the allegations contained in the petition. The circuit court accepted petitioner’s
stipulation, adjudicated her as an abusing parent, and granted her a post-adjudicatory
improvement period. As part of the terms and conditions, petitioner was required to remain drug
and alcohol free, participate in a psychological evaluation and follow the recommendations
made, participate in parenting and adult life skills classes, obtain and maintain employment and
suitable housing, attend Narcotics Anonymous (“NA”) or Alcoholics Anonymous (“AA”)
sessions until she could enroll in a long-term inpatient substance abuse treatment program, and
successfully complete a long-term inpatient substance abuse treatment program. Petitioner was
also granted supervised visitation with the children contingent on her ability to remain drug and
alcohol free.

        Petitioner initially complied with her improvement period and entered a long-term
inpatient substance abuse treatment program. However, despite petitioner’s successful
completion of the treatment program, she relapsed only a short time after her release. The DHHR
filed a motion requesting that the circuit court terminate petitioner’s improvement period. After
holding a hearing on the motion in August of 2018, the circuit court terminated petitioner’s
improvement period and set the matter for disposition.

        The circuit court held a dispositional hearing in September of 2018. Petitioner failed to
attend but was represented by counsel. Counsel for petitioner requested a continuance due to
petitioner’s absence, and the circuit court denied the same. A service provider testified that
petitioner completed a six-month inpatient rehabilitation program, but ceased complying with
services approximately one month following her release from the program. Petitioner had not
attended any parenting or adult life skills classes since June of 2018 and she was also fired from
her employment. Testimony established that petitioner had resumed abusing drugs and,
immediately following the hearing on the DHHR’s motion to terminate petitioner’s improvement
period, tested positive for methamphetamine and tetrahydrocannabinol (“THC”). A second
service provider testified that petitioner attended two supervised visits with the children in April
of 2018, but subsequently ceased participating. A forensic psychologist testified that, after
performing a psychological evaluation of petitioner, he determined petitioner’s prognosis for
correcting her parenting issues or developing the ability to properly parent her children was very
poor. The psychologist stated that, given petitioner’s substance abuse, she was unable to keep the
children safe.

        After hearing evidence, the circuit found that, while petitioner had made significant
strides in the case and attempted to overcome her drug addiction, she failed to follow through

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with treatment. The evidence established that petitioner continued to associate with drug users,
failed to comply with services, and remained addicted to drugs, which negatively affected her
ability to properly parent the children. Finding that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and that it was
contrary to the children’s best interest to remain in her care, the circuit court terminated
petitioner’s parental rights. It is from the October 24, 2018, dispositional order that petitioner
appeals.3

       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).

        In her brief on appeal, petitioner argues that the circuit court erred in terminating her
parental rights when she had “almost completed” her improvement period.4 Despite her relapse
after intensive treatment, petitioner avers that she was willing to comply but needed additional
services. Further, petitioner argues that a DHHR worker and service provider testified that
petitioner had a strong bond with the children and, as such, additional services were warranted
before terminating her parental rights. We disagree.




       3
        The father is currently participating in an improvement period. Should he not
successfully complete the improvement period such that reunification is possible, the concurrent
permanency plan is adoption by the great-aunt and great-uncle.
       4
        In passing, petitioner states that the circuit court erred in failing to grant her a
continuance at the dispositional hearing. However, petitioner fails to cite to any authority
demonstrating that she should have been granted a continuance. “A skeletal ‘argument,’ really
nothing more than an assertion, does not preserve a claim. . . .” 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)). Accordingly, we decline to address this argument.
                                                3
        To begin, petitioner fails to demonstrate that she was entitled to a post-dispositional
improvement period. Pursuant to West Virginia Code § 49-4-610(3)(D), a circuit court may grant
a post-dispositional improvement period when

       [s]ince the initiation of the proceeding, the [parent] has not previously been
       granted any improvement period or the [parent] demonstrates that since the initial
       improvement period, the [parent] has experienced a substantial change in
       circumstances. Further, the [parent] shall demonstrate that due to that change in
       circumstances, the [parent] is likely to fully participate in the improvement
       period.

Here, petitioner was granted a six-month post-adjudicatory improvement period and a three-
month extension. As such, she was required to demonstrate a substantial change in circumstances
in addition to her likelihood of fully participating in an improvement period in order to be
granted a post-dispositional improvement period. However, in her brief on appeal, petitioner
does not indicate where in the record she established any substantial change in her
circumstances. Moreover, she fails to demonstrate that she was likely to fully participate in an
improvement period. The record establishes that petitioner entered and successfully completed a
long-term inpatient substance abuse treatment program. However, soon after being released,
petitioner returned to abusing drugs. Petitioner participated in only two supervised visits with the
children in April of 2018 and failed to visit with them thereafter. Further, petitioner ceased
participating in adult life skills and parenting classes after June of 2018. As such, despite
petitioner’s argument to the contrary, she failed to demonstrate that she was likely to participate
in a post-dispositional improvement period given her failure to comply with nearly every term
and condition of her post-adjudicatory improvement period. Accordingly, we find no error in the
circuit court’s decision to deny petitioner’s request for a post-dispositional improvement period.

        We likewise find no error in the circuit court’s decision to terminate petitioner’s parental
rights. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental,
custodial, and guardianship 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 child’s welfare. According to West Virginia Code § 49-4-
604(c)(3), a situation in which there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected includes one in which

       [t]he abusing parent or parents have 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, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child.

        As mentioned above, although petitioner initially complied with her improvement period,
she relapsed in her drug abuse and ceased participating in any services. Indeed, petitioner only
attended two supervised visits with her children and failed to attend any services after June of
2018. While petitioner argues that her parental rights should not have been terminated given the
substantial progress she made before her relapse, we have previously noted that “it is possible for

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an individual to show ‘compliance with specific aspects of the case plan’ while failing ‘to
improve . . . [the] overall attitude and approach to parenting.’” In the Interest of Carlita B., 185
W. Va. 613, 626, 408 S.E.2d 365, 378 (1991) (quoting W. Va. Dep’t of Human Serv. v. Peggy F.,
184 W. Va. 60, 64, 399 S.E.2d 460, 464 (1990)). Moreover, “[i]n making the final disposition in
a child abuse and neglect proceeding, the level of a parent’s compliance with the terms and
conditions of an improvement period is just one factor to be considered. The controlling standard
that governs any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re
B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014). We have further held that “courts are not required
to exhaust every speculative possibility of parental improvement . . . where it appears that the
welfare of the child will be seriously threatened . . . .” Syl. Pt. 4, in part, In re Kristin Y., 227 W.
Va. 558, 712 S.E.2d 55 (2011) (quoting syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266
S.E.2d 114 (1980)). Here, despite having been granted numerous services throughout two
proceedings, petitioner ultimately failed to demonstrate that she improved her overall attitude or
approach to parenting or responded to any rehabilitative efforts. Although petitioner showed
improvement at times, the circuit court was not required to exhaust any speculative possibility of
improvement in light of the children’s welfare and petitioner’s dismal performance. Accordingly,
the circuit court did not err in finding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse in the near future.

       To the extent petitioner argues that the circuit court should not have terminated her
parental rights based upon her bond with the children, we note 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).

Kristin Y., 227 W. Va. at 560, 712 S.E.2d at 57, syl. pt. 5. Despite any bond between petitioner
and the children, the circuit court found that termination of petitioner’s parental rights was in the
best interests of the children given petitioner’s inability to address the conditions of abuse during
the proceedings and the lack of reasonable likelihood that she would do so in the near future. “‘In
a contest involving the custody of an infant the welfare of the child is the polar star by which the
discretion of the court will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va.
302, 47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W., 233 W. Va. 91, 755 S.E.2d 8 (2014).
Therefore, petitioner is entitled to no relief.

        Lastly, because the proceedings regarding the father are ongoing, this Court reminds the
circuit court of its duty to establish permanency for the children. 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

                                                   5
       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
children within twelve months of the date of the disposition 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

               [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
October 24, 2018, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 19, 2019


CONCURRED IN BY:

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



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