1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re M.M.

- 1, T.M., and S.M.

No. 2 1

- 0 6 09 ( Wood County 19

- JA

- 166 , 19

- JA

- 167, and 20

- JA

- 64 )



### MEMORANDUM DECISION

Petitioner Father M.M.

- 2

, by counsel Wells H. Dillon

, appeal s t he Circui t Co urt o f Wood County’s June 7

, 20 2 1 , order terminating h is parental rights to M.M.

- 1, T .M., and S.M

. 1 The West Virginia Department of Health and Human Resources ( “DHHR”), by counsel Pat rick

M orrisey and Lee A. Niezgoda , f iled a respon se in suppo rt of t he c ircui t court’s o rde r

. The guardian ad li tem

, Garret C. Villers

, filed a response on the chil d ren ’s behalf in support of the

circuit court’s order

. On appeal, petitioner argues that the circuit court erred in terminating his parental rights rathe r t ha n imposing a less

- restrictive dispositional alternative

.

Thi s Cou r t has considered the parties’ briefs and the record on appeal. The facts and leg al

a rguments are adequately presented, and the decisi onal proce ss would no t be si gnif ican tl y aid ed

b y o ral a rgu ment. Upon consideration of the standa rd of review, the bri e fs, a nd the record

present ed, the Court finds no substantial question of law and no p re ju dicial error. For these

reasons, a memorand um dec ision affi rm ing th e c ircuit cour t’s or der i s ap pro pri at e u nder Rule 21 of the Rules of Appellate Procedure.

In August of 2019, the DHHR filed a child abuse and neglect petition alleging that the mother abused and neglected then

- one

- year

- old twins, M.M.

- 1 and T.M. The DHHR alleged that

the m other abused co nt rolled substances during her pregnancy with the twins and the n left the children in the care of an inappropriate guardian. The DHHR made no allegations that petitioner had abused or neglected the childre n. In December of 2019, the mother gave birth to S. M. That child remained with the parents until the DHHR amended the petition in March of 2020. In the

1 Con sis tent with our l ong

- sta n d ing pract ice in cas es wi th sens i tive facts, we use initials

wh ere necessary to prot ect the identiti e s of those inv olved in this case. S ee In re K.H

. , 2 3 5 W

. V a

. 2 5 4, 773 S .E.2d 2 0 (2015); Melinda H. v. William R. II , 230 W. Va . 7 31, 742 S.E.2d 419 (2013) ; State v. Brandon B.

, 218 W. Va. 324, 624 S.E.2 d 761 (2005); St ate v. Edward Charles

L. , 183 W. Va. 6 41, 3 98 S.E .2d 123 (1990). Addition ally, as one of t he child ren a nd petitioner share the same initials, we refer to them as M. M.

- 1 and M.M

. - 2, re spectively, througho ut this

memorandum decisi on. 

### FILED
February 1, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 amended petition, the DHHR alleged that petitioner and the mother engaged in domestic

violence and subst ance abuse and failed to maintain a suitable hom e f or the infant, S.M. The DHHR further alleged that, although petitioner was a nonoffending parent early in the proceedings, he did not request custody of M.M.

- 1 or T.M.

, he did not request visitation with

them

, and he had fa iled to participate in the pro c ee di ngs or the lives of the children. The DHHR alleged that petitioner had not provided any financial or emotional support for the twins and had demonstrated a settled purpose to forgo his parental duties and responsibilities to the children.

Petitioner w a iv ed his preliminary he aring.

The circuit court convened for adjudicatory hearing s in July and August of 2020.

Petitioner stipulated that he abused controlled substances, which impaired his parenting skills,

and that he f ailed to provide adequa te h ousing fo r the c hil dren. Petitioner also admitted that since the filing of the initial petition in August of 2019 until the filing of the amended petition in March of 2020, he had had no contact or visitation with M.M.

- 1 and T.M. and had not participat ed i n any of the pro cee dings. The circuit court accepted petitioner’s stipulation and adjudicated him as an abusing parent. Later in August of 2020, petitioner moved for a post

adjudicatory improvement period, which was granted. As t erms of his post

- adjudi cato ry imp rov ement p eri od, petitioner agreed to participate in parenting and adult life skills classes; supervised visitation with the children; domestic violence prevention classes; random drug screening; individualized therapy; a p arental fitness evaluat ion; and a substance ab use evaluation. Petitioner also agreed to maintain a suitable residence for himself and the children.

The circuit court held an improvement period review hearing in November of 2020, and the DHHR moved to terminate petitioner’s impr ovem ent pe rio d. The DHH R proffered that petitioner repeatedly test ed positive for tetrahydrocannabinol (“THC”) at varying levels, wh ich indicated continued use, and had tested positive for methamphetamine on one occasion. The DHHR also reported t hat petitioner had “ unr ealistic” expectations regarding the children’s

behavior during visitations and responded inappropriately to their behaviors

. Petitioner indicated that he was using cannabidiol ( commonly referred to as “CBD”) products that may have

contained low levels o f THC and caused hi m to test positive for that substance. Petitioner agreed to stop using those CBD products. Peti tioner d enied using methamphetamine. Ultimately, the

circuit court took the DHHR’s motion under advisement and cont inued petitioner’s post

a d

j ud icatory improv eme nt period.

The circuit court held another improvement period review hearing in January of 2021. Petitioner failed to appear, but counsel represented him. The DHHR renewed its motion to terminate petitioner’s i mprovement period. It rep o r te d that petitio ner had not been complying

with the terms of his improvement period ; he w as not participating in domestic violence courses, was “not . . . prepared for visits with the children,” and w as currently homeless. The DHHR also reported that pet i tio ner con tinued to test positive for THC and had missed seven appointments for drug scree ning. The circuit court considered petitioner to be “on thin ice ” but continued the improvement period in anti cipation that he would participate in a parent al fitnes s ev alu ati on later in January of 2021.

In March of 2021, the circuit court held the final review hearing for petitioner’s improvement period. Petitioner did not appear but was represented by counsel. Counsel3 presented a motion to withdraw from pe titioner’ s re pre sen tation based upon a message from petitioner that he believed “he need ed a new attorney who would represent his interests better”

than his current counsel. The circuit court denied counsel ’ s motion due to his absence from the hearing. The DHHR rep o rte d t hat petitioner failed to attend his parental fitness evaluation.

Furt her, the DHHR reported that petitioner had not maintained contact with the CPS worker or his services providers. The circ uit court concluded that it could not find that petitioner h ad

sub stantially complied with his improvement period such that an extensio n was warranted and set the proceedings for disposition.

The circuit court held the final dispositional hearing in Apr il of 2021. Petitioner did not

appear but was r epresented b y co uns el. Counsel renewed her motion to withdraw from representing petitioner. She averred that she had received additional correspond ence from petitioner that indicated he had ceased participatio n in the proceedings because he believed he

was not adequat e ly rep resented and that his counsel had capitulated to the DHHR ’ s po sition . The

circuit court denied counsel’s motion due to petitioner’s absence from the proceedings and

counsel’s zealous advo ca cy throughout. The DHHR admitted a court summar y and moved f o r

t he termination of petitioner’s parental rights. The circuit court found that petitioner had not participated in the proceedings since “at least December [of] 2020” and that his choice to not

p articipate in the proceedings was “a very relev ant factor.” T he ci rcuit court concluded , based upon petitioner ’ s nonparticipation in the proceeding s, that there was no reasonable likelihood that the conditions of neglect or abuse could be substantially cor rected in the near future . The

court further found that it w a s n ece ssa ry for the children’s welfare to terminate petitioner’s parental rights. Accordingly, the circuit court terminated petitioner’s parental rights by its June 7, 2021, order. Petitioner now a ppeals that order. 2

T he Co urt has p r evi ou s ly he ld :

“Although conclusions of law re ache d by a circu i t cou rt are subject to de

novo rev iew, wh en an a c tion, suc h as an a buse a nd neglect c ase, is tried upo n the

f acts w itho ut a j ury, th e circuit court shall make a determin ation ba sed u pon the

e v ide nc e an d shall make fin dings of fact and conc lusi ons of law a s t o w hether

such child is abused o r negle cte d. T h ese fi ndi n g s shall not b e set asid e by a reviewing co urt unl ess cl earl y er ro neous. A finding is clearly e rroneou s when,

altho ugh ther e is evid e nce t o su pp ort the findin g, the reviewing court on the entire

e v id enc e is left with the definite a nd firm co nvi c t ion th at a mi stake has b een commit t e d. Ho wever, a rev iewing cour t may not ov erturn a finding simply

becau se it w ould hav e dec ide d the case dif f ere nt l y, an d it must affi rm a finding if

the ci rcui t court’s ac c ou nt of the evidence is plausible in ligh t o f t h e recor d

v i e we d in its e n tirety.” S y l . Pt. 1, In In ter est of Tiff an y Ma rie S. , 196 W .Va. 223,

470 S.E.2d 1 77 (199 6).

2 The mother ’ s parental rights were termin ated in Octo ber of 2021. According t o the parties, the permanency pl an for the childre n is adoption in their current foster placement.4 Sy l. Pt . 1

, In re Cecil T

., 22 8 W. V a. 89, 717 S.E .2d 873 (2011).

On appe al, petitioner argues that the circuit court erred in ter minating his parental right s rather tha n imposing a less

- rest rictive dispositional alternative, such as an extension of his improvement pe riod or g r ant ing hi m a post

- dis positional improvement period. Petitio ner avers that the mother continued to participate in an improvement period and , therefore, the termination of his parental rights would not ach ieve permanency for the children . Petition er also ar g ues th at
he faced animo sity from the DHHR a nd “ trust issues ” with his counsel, which the circuit c ourt

s hould have considered prior to terminating his parental rights. Peti tioner argues t hat a permanent leg al guardianship, pursuant to West Virg i nia Code § 49

- 4

- 6 04( c)(5), was the least restrictive dispositional alternative and should have been imposed. We find petitioner is entitled

t o no relief on appeal

.

P ursu ant to West Vi rginia Code § 49

- 4

- 604 ( c)(6) , a circ uit court may ter minate a parent ’ s

p are ntal ri g hts up on finding that “ there is no reasonable likelihood tha t the conditions of neglect

or abuse can be subst ant ially correc ted in t he nea r futur e ” and that te rmination is necessary for

the welfa r e of the chil dre n. West Virgin i a Code § 49

- 4

- 604( d) (3) prov i des th at “ there is no

reasonable likelihood th a t the conditions of neglect or ab use can be substantially correct ed ”

means that

[t] he abusing parent or parents have not responded to or followed thr ough with a

re asonable family case plan or othe r rehabili t ati ve eff orts of social, medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or neglect o f the child, as evidenced by the continuation or insubstantial

d iminution of c onditions which threatened the he alth, welf a re, or li fe of the child

.

Notably, petitioner does not challenge the c ircuit court ’ s fi n ding that there was no

reasonable likelihood that he could substan tiall y correct the conditions of abuse an d neglect

. Petitioner merely declares that a les s

- restrict i ve dis pos itional alternative was necessary. However, w hen co nsider ing th e evidence that petitioner failed to remain in contact with th e DHHR, failed to participate in parenting and adult l ife skills c lasses, failed to partic ipate in

ran dom drug screening ( or tes ted positive for controlled substances), and failed to par ticipate in a parental fitness evaluation, we find no error in the cir cuit court ’ s conclusion that petitioner failed

to follow through with a reasonable family case plan. Here, the circuit co u rt ’ s f ind ing that ther e was no reasonable l ikelihood that petition er could substantially correct the conditions of neglect

and abuse i s supported by the evidence that h e failed to comply with the term s of his family case plan and failed to c o rrect the con d iti ons of abuse and neglect on his own or with help

.

The circuit court ’ s finding that there was no reasonable likelihoo d that th e conditions of neglect and abuse could be substantially correct ed in the near future is fatal to petitioner ’ s

argu ment on app e al

. W e h ave held that

“ [t] ermination of parental right s, the most dr astic remedy un der th e

st atutory provi sion covering the dispositi on of neglecte d children, [ Wes t Virginia Code § 49

- 4

- 604]

. . . may be empl oyed without the use of intervening less

restr i cti ve al ternatives when it is found that there is no reasona ble likel ihood5 under [ We st Vir gini a Code § 49

- 4

- 604( d ) ]

. . . that conditi ons of neglect or abuse

can be substantially cor re cted.” Syll abus point 2, In re R.J.M. , 164 W.Va. 496,

266 S. E.2d 1 14 (1 9 80)

.

Sy l. Pt. 5, In re Kristin Y. , 227 W. Va. 55 8 , 712 S.E.2d 55 (20 11). Accordingly, because the

circuit court ’ s findi ng is support ed by the record, the court was well within its discretion to

terminat e petitioner ’ s parent al rights, rather than impose o n e o f th e l es s

- restr ictive dispositional

alternatives he argues for on appeal. Upon our review

, we find the circ uit court did not abuse its

discretion in termi nating petitioner ’ s parental rights.

Additionally, petitioner raises tw o other assignments of e r ror : 1) that the circuit court

abused i ts d iscretion in denying his motion for new counsel; and 2) that the circu it court erred in adding a term to his improvement period that he refrain from the use of CBD products. However, petitioner ha s not provided a p pro priate citation to authority in support of th ese arguments

, in

violation of Rule 10(c)(7) of the Wes t Virginia Rules of Appellate Procedure , which requires that “[t]he brief must contain an argument exhibiting clearly the poin ts of . . . law p res ented

. . . and citing the authorities relied on.” 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 th at lack citation of autho ri ty [ or] fail to structure an argument applying applicable law” and “[b]riefs with arguments that do not contain a citation to legal authority to support the argument presented” are not in compliance with this Court’s rules. In

th at order, th is Co urt went o n t o instruct that “all of the requirements of the Rules must be strictly observed by litigants” becaus e “[t]he Rules are not mere procedural niceties; they set forth a structured method to permit litigants and this Court to care fully review each ca se.” In

or d ering that all litigants before this Court must comply with the Rule s of Appellate Procedure,

the C ourt cautioned that “[p]ursuant to Rule 10(j), failure to file a compliant brief ‘may result in the Supreme Court refusing to consider the case , d enyin g arg u ment to the derelict party, dismissing the case from the docket, or imposing such other sanctions a s the Court may deem appropriate.’” A s petitioner has failed to provide any ci tation to a uthority in support of these

argument s, we decline to add ress t h em on appeal.

Fo r the foregoing reas ons, we find no erro r in the dec isi on of the cir cuit court

, and i ts

Ju ne 7

, 2 0 2 1 , o rder is h e reby affi rmed.

Affirme d.

ISSUED : 

### February 1, 2022

CONCURRE D IN BY :

Chief Justice John A. Hutchison

Justice El izabeth D. Walker

Ju stice Tim Armstead

Justice Evan H. Jenkins

Justice William R. Wooton