In re L.G., G.B., J.B., R.B., and B.B. ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re L.B., G.B., J.B., R.B., and B.B.
No. 21-1037 (Mason County 21-JA-10, 21-JA-11, 21-JA-12, 21-JA-13, and 21-JA-14)
MEMORANDUM DECISION
Petitioner Mother C.R., by counsel R. Michael Shaw, appeals the Circuit Court of Mason
County’s November 30, 2021, order terminating her parental and custodial rights to L.B., G.B.,
J.B., R.B., and B.B. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Patrick Morrisey and Brittany N. Ryers-Hindbaugh, filed a response in
support of the circuit court’s order. The guardian ad litem (“guardian”), Tanya Hunt Handley,
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 terminating her parental and custodial rights upon
insufficient evidence.
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 April of 2021, the DHHR filed a child abuse and neglect petition alleging that
petitioner and the father abused controlled substances that negatively affected their ability to
parent the children. The DHHR alleged that the parents received safety services from February
of 2020 through April of 2021, but, even with services in place, the safety of the children could
not be ensured. The DHHR described then fifteen-year-old L.B. had an “odor” while at school.
The child explained that there were multiple dogs in the home that were not house trained and
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).
1
would defecate and urinate in her bed. The dogs’ waste was also found on the child’s clothes.
L.B. stated that her siblings (ages eight through twelve) also complained of the dogs’ behavior.
Additionally, the DHHR reported that then-twelve-year-old G.B. had a brain tumor removed in
2017, but petitioner failed to schedule necessary follow up medical appointments for the child.
Finally, the DHHR alleged that the father exhibited violent tendencies and committed domestic
violence in front of the children. The father allegedly “tore an entire door off its hinges” to enter
a bathroom where petitioner was hiding. The children attempted to intervene by bringing a
family dog in between their parents. The children relayed that when they were absent from the
home, “they constantly call[ed] . . . to check on [petitioner]” due to their fear for her safety.
Petitioner waived her right to a preliminary hearing.
In June of 2021, petitioner stipulated to the allegations that her substance abuse
negatively affected her ability to parent the children and that she failed to provide G.B. with
appropriate medical care. The circuit court accepted petitioner’s stipulation and adjudicated her
as an abusing parent and the children as abused and neglected children. The court ordered
petitioner to participate in a parental fitness evaluation, parenting and adult life skills classes,
supervised visitation, and random drug screening.
Following the hearing, petitioner moved for a post-adjudicatory improvement period on
June 8, 2021. On June 25, 2021, the guardian filed a report that petitioner was not compliant with
the recommendations of the multidisciplinary treatment team (“MDT”). The MDT recommended
petitioner submit to a drug detoxification center and a date was scheduled for her to enter a
program, but she failed to attend. The DHHR reported that petitioner tested positive for
methamphetamine “on multiple occasions.” According to the parties’ respective reports,
petitioner was late for her first supervised visitation with the children and failed to appear for the
second and third scheduled visits.
The DHHR received petitioner’s parental fitness evaluation in August of 2021. The
DHHR relayed that the evaluator provided petitioner a “poor” prognosis for attainment of
minimally adequate parenting within the typical time frame. 2 The evaluator based this opinion on
petitioner’s minimization of her own behavior related to the abuse and neglect of the children;
her noncompliance with mandated services; her history of domestic violence; her history of
polysubstance abuse and dependance; her neglect of the children’s basic needs; and her history
of unemployment and unstable housing. The DHHR confirmed that petitioner had “not complied
with any services aside from [the parental fitness evaluation] and ha[d] not drug screened
consistently.”
The circuit court held a hearing on petitioner’s motion for a post-adjudicatory
improvement period in September of 2021. 3 Petitioner testified in support of her motion, and the
2
Petitioner did not provide a copy of her parental fitness evaluation in the appendix
record.
3
Petitioner did not include a transcript of this proceeding in the appendix record.
2
DHHR presented testimony from two witnesses, one of whom was a DHHR worker. The DHHR
reported that petitioner failed to comply with services. Further, petitioner missed a recent visit
with the children that was scheduled for G.B.’s birthday. Ultimately, the circuit court found that
petitioner failed to demonstrate that she was likely to fully participate in an improvement period
because she failed to follow through with parenting and adult life skills classes, address her
substance abuse, or participate in supervised visitation. Accordingly, the circuit court denied
petitioner’s motion and scheduled a dispositional hearing. The guardian filed a motion to
terminate petitioner’s parental rights in October of 2021, alleging that there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the near
future.
In October of 2021, the circuit court held the final dispositional hearing during which
petitioner again moved for an improvement period. Petitioner introduced a recent drug screen
result, indicating she was not abusing nonprescribed substances, but presented no additional
testimony. The DHHR joined in the guardian’s motion to terminate petitioner’s parental rights.
The court, considering prior evidence and arguments presented, found that there was no
reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in
the near future. The court found that there was a “lack of involvement by [petitioner] in services
prior to, and since, the filing of the [p]etition in this matter.” Finally, the court found that
termination of petitioner’s parental rights was in the children’s best interests and necessary for
their welfare. Accordingly, the circuit court terminated petitioner’s parental and custodial rights
to the children by its November 30, 2021, order. Petitioner now appeals that order. 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
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).
4
The father’s parental rights were also terminated below. According to the parties, the
permanency plan for the children is adoption in a foster placement.
3
On appeal, petitioner argues that the circuit court erred in terminating her parental and
custodial rights because its findings of fact are not supported by the record and are inconsistent
with the evidence presented. According to petitioner, the issue in this appeal is “whether the
record, as a whole,” supports the circuit court’s termination of petitioner’s parental and custodial
rights. Petitioner further argues that the circuit court erred in finding that she “had not
substantially complied with the terms of a post-adjudicatory improvement period” because she
was not granted an improvement period. 5 Petitioner also argues, without any citation to the
record, that she had adequate housing for the children at the time of the dispositional hearing, but
she does not address whether she remedied the other conditions of abuse and neglect. 6 Petitioner
is entitled to no relief on appeal.
Notably, petitioner’s appeal falls woefully short of complying with Rule 10(c)(7) of the
West Virginia Rules of Appellate Procedure, as it contains only a single citation to the appendix.
The lone citation appears in her statement of the case, directing the Court’s attention to the child
abuse and neglect petition. Rather than identify any error by the circuit court, petitioner asks this
Court to review the record in its entirety and determine if the circuit court erred. However,
“[j]udges 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). Indeed, Rule 10(c)(7) of the
West Virginia Rules of Appellate Procedure requires that “[t]he 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.” Critically,
this Rule also provides that “[t]he Court may disregard errors that are not adequately supported
by specific references to the record on appeal.” Id.Nevertheless, upon our review of the facts outlined above, we find that the circuit court
had sufficient 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 a parent’s parental and custodial rights upon these
5
It appears from the record that the circuit court did not make such a finding but did find
that petitioner was noncompliant with services offered by the DHHR.
6
Without a citation to authority or the record, in violation of Rule 10(c)(7) of the West
Virginia Rules of Appellate Procedure, petitioner briefly asserts that the child abuse and neglect
petition did not contain specific allegations against her. See W. Va. Code § 49-4-601(b) (“The
petition shall allege specific conduct including time and place [and] how the conduct comes
within the statutory definition of neglect or abuse with references to the statute[.]”). However,
petitioner does not cite to the record to show where this error was raised below. “‘Our general
rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be
considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688,
704 n. 20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d
650, 653 (2009). Accordingly, this alleged error will not be addressed.
4
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”). The circuit court found that petitioner was not likely to
participate in an improvement period because she failed to comply with services recommended
by the MDT, namely parenting and adult life skills classes, substance abuse treatment, or even
supervised visitation with the children. 7 This evidence supports the circuit court’s ultimate
determination that there is no reasonable likelihood that the conditions of neglect or abuse could
be substantially corrected in the near future, and petitioner’s argument that this finding is
erroneous is wholly unconvincing. Accordingly, we find no reversable error on appeal.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 30, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
7
“We have previously pointed out that the level of interest demonstrated by a parent in
visiting his or her children while they are out of the parent’s custody is a significant factor in
determining the parent’s potential to improve sufficiently and achieve minimum standards to
parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996)
(citations omitted).
5