In re M.B., B.B. and B.F. ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re M.B., B.B., and B.F.
No. 20-0777 (Jackson County 19-JA-71, 19-JA-72, and 19-JA-73)
MEMORANDUM DECISION
Petitioner Mother K.C., by counsel Ryan M. Ruth, appeals the Circuit Court of Jackson
County’s August 31, 2020, order terminating her parental rights to M.B., B.B., and B.F. 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 record. The
guardian ad litem (“guardian”), Erica Brannon Gunn, filed a response on the children’s behalf in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
denying her motion to extend her post-adjudicatory improvement period and in terminating her
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 May of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner exposed the children to domestic violence and that her substance abuse negatively
affected her ability to parent the children. According to the DHHR, B.B. disclosed to personnel
at his elementary school that his step-grandfather “chokes him around the neck and pushes him
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).
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against the wall.” 2 B.B. also disclosed that his step-grandfather “chokes him almost daily if [the
child] does not listen” and B.B. was carried through the house by his neck on one occasion.
Further, B.B. disclosed that he told petitioner about these events, and she told him not to tell
anyone. The DHHR alleged that M.B. confirmed B.B.’s disclosures and added that petitioner had
witnessed the abuse but would not take action “because she ha[d] no where else to live.” Finally,
the DHHR alleged that petitioner had noticeable signs of substance abuse and that she abused
Subutex, for which she did not have a prescription. Petitioner waived her preliminary hearing.
Petitioner stipulated to the allegations of abuse and neglect in November of 2019, and the
circuit court adjudicated her as an abusing parent. Thereafter, petitioner moved for a post-
adjudicatory improvement period, which the circuit court held in abeyance. The court ordered
that the parties convene for a multidisciplinary treatment (“MDT”) meeting and that the DHHR
prepare a family case plan. The circuit court further ordered petitioner to participate in a parental
fitness evaluation. The circuit court later granted petitioner’s motion for a post-adjudicatory
improvement period in December of 2019.
In April of 2020, the circuit court entered an agreed order continuing petitioner’s initial
improvement period review. The court noted that petitioner had been incarcerated “for much of
her improvement period and ha[d] been unable to participate in services.” 3 On May 22, 2020, the
guardian filed a motion to revoke petitioner’s improvement period and to terminate her parental
rights. The guardian alleged that petitioner was released from incarceration on April 27, 2020,
and had not complied with services since her release. The guardian alleged that as of May 19,
2020, petitioner had not contacted her parenting classes provider.
In June of 2020, the circuit court convened for petitioner’s initial improvement period
review hearing. The court found that petitioner had been released from incarceration but had not
engaged in services through the DHHR. The parties moved to continue petitioner’s review
hearing to hold an MDT meeting, which the circuit court granted. Prior to the continued review
hearing, petitioner filed a motion to extend her post-adjudicatory improvement period, alleging
that she had complied with services for two months of her six-month improvement period and
that an extension to that improvement period would not impair the DHHR’s ability to achieve
permanency for the children.
The circuit court held a dispositional hearing in July of 2020 and heard testimony from
multiple DHHR workers and petitioner. The circuit court continued the hearing to allow for
additional testimony. Later, by agreed order, the circuit court cancelled the continued hearing,
which had been designated for a final review of petitioner’s improvement period. The parties
agreed that all relevant evidence had been presented to the circuit court with the exception of a
2
According to the record, the State of West Virginia pursued criminal charges against the
step-grandfather as a result of the children’s disclosures.
3
It is unclear from the record or the briefing on appeal why petitioner was incarcerated.
2
report from petitioner’s parenting class provider. The parties further agreed that the report could
be submitted as evidence to the court.
In August of 2020, the circuit court entered the final dispositional order that granted the
guardian’s motion to revoke petitioner’s post-adjudicatory improvement period and to terminate
her parental rights to the children. In support, the circuit court found that prior to petitioner’s
term of incarceration, she had only participated in parenting classes. Following petitioner’s
release from incarceration, petitioner “did not immediately start or resume services.” The circuit
court found that petitioner had not complied with a substance abuse evaluation or domestic
violence victim impact classes. In regard to these services, petitioner testified that the service
provider had not received a referral from the DHHR, but petitioner’s case worker testified that
the referral had been sent to the provider on two separate occasions. The circuit court found that
petitioner had failed to comply with random drug screening until June of 2020 and, since that
time, she had missed two appointments. Petitioner testified that she did not have transportation to
get to these appointments. However, the court noted that petitioner also testified that she “never
failed to get transportation to the Suboxone clinic [near the drug testing facility] or to pick up
[her] prescription [for Suboxone].” Significantly, petitioner had not visited with the children
since the filing of the petition due to her failure to comply with random drug screening. Finally,
the circuit court found that the proceedings had been “emotionally traumatic” for M.B. and B.B.,
that both children required therapy, and that neither desired to return to petitioner’s care.
The circuit court concluded that it could not find that petitioner had “substantially
complied with” the terms of her improvement period and further found that she had not
demonstrated a likelihood to fully participate in an additional improvement period. The court
concluded that petitioner had not made sufficient improvement to justify the return of the
children and that there was no reasonable likelihood that petitioner could substantially correct the
conditions of abuse and neglect in the near future. Petitioner now appeals the circuit court’s
August 31, 2020, order that terminated her parental and custodial rights to the children. 4
The Court has previously held:
“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
4
The children’s respective fathers have had their parental rights terminated. According to
the parties, the permanency plan for M.B. and B.B. is adoption in their current placement, and
the permanency plan for B.F. is adoption by relatives.
3
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 when it did not find that her
incarceration through the majority of her post-adjudicatory improvement period was sufficient
grounds for an extension. Petitioner “does not dispute that at the time of [the dispositional
hearing in July of 2020] she had not adequately improved the conditions of abuse and/or
neglect.” However, she asserts that her failure to improve was a direct result of being unable to
participate in services due to her incarceration. According to petitioner, the circuit court should
have granted her motion “to get a better sense of whether she could make sufficient
improvements in her parenting.” We find petitioner is entitled to no relief on appeal.
West Virginia Code § 49-4-610(6) governs extensions to improvement periods and
provides that
[a] court may extend any improvement period . . . for a period not to exceed three
months when the court finds that the respondent has substantially complied with
the terms of the improvement period; that the continuation of the improvement
period will not substantially impair the ability of the department to permanently
place the child; and that the extension is otherwise consistent with the best interest
of the child[ren].
See also Syl. Pt. 7, In re Isaiah A., 228 W. Va. 176, 718 S.E.2d 775 (2010) (holding that the
circuit court must make the findings specified in West Virginia Code § 49-4-610(6) prior to
granting an extension of an improvement period).
Here, the circuit court did not err in denying petitioner’s motion for an extension of her
improvement period due to her failure to comply with the terms and conditions of that
improvement period. Although we acknowledge that petitioner was incarcerated for a portion of
her six-month improvement period, she also failed to comply with services following her release
from incarceration. 5 In essence, petitioner was available to participate from May of 2020 through
the dispositional hearing in July of 2020, but she only participated in parenting classes during
5
We note the facts of this case are distinguishable from In re Cecil T., 228 W. Va. 89, 717
S.E.2d 873 (2011), wherein this Court set forth factors for circuit courts to consider when no
“circumstances other than incarceration are raised at a dispositional hearing” as cause to
terminate a parent’s parental rights. Cecil T., 228 W. Va. 89, 91, 717 S.E.2d 873, 875, syl. pt. 3,
in part. In this case, petitioner’s nonparticipation in the services offered by the DHHR after her
release from incarceration was a compelling circumstance, other than her incarceration during
the proceedings, to terminate her parental rights.
4
that time. As the circuit court found, petitioner failed to participate in a substance abuse
evaluation and domestic violence victim’s impact classes, which were both critical to resolving
the conditions of abuse and neglect. Furthermore, petitioner only partially participated in random
drug screenings, and that participation was not consistent enough for her to be granted visitation
with the children. While petitioner argues that she should have been granted additional time due
to her inability to participate in services, that is simply not the statutory standard when
considering an extension to an improvement period. The record supports the circuit court’s
finding that petitioner had not substantially complied with the terms of her improvement period,
and she does not challenge that finding on appeal. Accordingly, we find petitioner is entitled to
no relief.
Additionally, we note that petitioner assigns error to the circuit court’s termination of her
parental rights. However, petitioner’s brief on appeal is inadequate in regard to this assignment,
both in terms of complying with this Court’s rules and in terms of attempting to establish this
alleged error by the circuit court. Specifically, petitioner fails to cite to a single legal authority
that would entitle her to relief, which is in violation of Rule 10(c)(7) of the West Virginia Rules
of Appellate Procedure. 6 As this Court has held, “[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)
(citation omitted).
Even more critically, petitioner fails to argue that the circuit court’s findings of fact upon
which termination was based were erroneous. Accordingly, petitioner is precluded from any
relief on appeal by failing to identify any alleged error on the part of the circuit court in imposing
termination of her parental and custodial rights. Nevertheless, upon our review, we find that the
circuit court had ample evidence upon which to base findings that there was no reasonable
likelihood petitioner could substantially correct the conditions of abuse and neglect in the near
future and that termination was necessary for the children’s welfare. Pursuant to West Virginia
Code § 49-4-604(c)(6), circuit courts may terminate parental and custodial rights upon these
findings. See also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (holding that
termination of parental rights, “the most drastic remedy” in abuse and neglect cases, may be
employed “when it is found that there is no reasonable likelihood . . . that conditions of neglect
or abuse can be substantially corrected”). Petitioner’s failure to cite to any evidence or authority
supporting her position is fatal to her claim, and we find that she is entitled to no relief.
6
Rule 10(c)(7) provides as follows:
The 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.
5
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 31, 2020, order is hereby affirmed.
Affirmed.
ISSUED: April 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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