STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

FILED 

In re R.P. October 12, 2018 

EDYTHE NASH GAISER, CLERK 

No. 18-0362 (Fayette County 17-JA-66) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father M.P., by counsel Joseph M. Mosko, appeals the Circuit Court of Fayette 

County’s March 23, 2018, order terminating his parental rights to R.P.1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. FeltonErnest, filed a response in support of the circuit court’s order and a supplemental appendix. The 

guardian ad litem (“guardian”), Allison R. Taylor, filed a response on behalf of the child also in 

support of the circuit court’s order and a supplemental appendix. On appeal, petitioner argues 

that the circuit court erred in terminating his parental rights when he was not present for the 

dispositional hearing and the record demonstrated that he was seeking help for his substance 

abuse. 

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. 

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). Additionally, petitioner’s counsel notes that his brief is filed 

in accordance with Rule 10(c)(10)(a) of the West Virginia Rules of Appellate Procedure, which 

provides that 

[c]ounsel must engage in a candid discussion with the client regarding the merits 

of the appeal. If, after consultation with the client, the client insists on proceeding 

with the appeal, counsel must file a notice of appeal and perfect the appeal on the 

petitioner’s behalf. The petitioner’s brief should raise any arguable points of error 

advanced by the client. Counsel need not espouse unsupportable contentions 

insisted on by the client, but should present a brief containing appropriate 

citations to the appendix and any case law that supports the assignments of error. 

1 
In August of 2017, the DHHR filed a child abuse and neglect petition against petitioner 

and the mother alleging that they engaged in domestic violence against each other and the child. 

Then four-year-old R.P. admitted to a forensic interviewer that she had cigarette burns on her 

legs and disclosed that “[m]y mommy and daddy burned me.” R.P. also pointed to a scar on her 

leg which she stated was a cigarette burn. The DHHR alleged that petitioner hit R.P. in the 

forehead, grabbed her head, and slammed her against the wall. Further, the DHHR alleged that 

petitioner abused controlled substances in the presence of the child. Based upon the foregoing, 

the DHHR alleged the child was abused and neglected by petitioner and the mother. Petitioner 

waived his preliminary hearing. 

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 and adjudicated him as an abusing parent. Thereafter, the circuit court granted 

petitioner a post-adjudicatory improvement period in October of 2017, and ordered that he 

submit to random drug screens, participate in a batterer’s prevention program, refrain from using 

or possessing controlled substances without a prescription, undergo a substance abuse 

evaluation, and participate in an inpatient rehabilitation program. 

A multidisciplinary team (“MDT”) meeting was held in November of 2017 and petitioner 

failed to attend. The MDT members were informed that petitioner was recently arrested for 

shoplifting and had been granted entrance to an inpatient rehabilitation program at the Learn 

Center. At a status hearing held later in November of 2017, petitioner was ordered not to violate 

any state, federal, or municipal laws as part of his improvement period. The circuit court also 

ordered petitioner to enter a drug rehabilitation program without leaving against medical advice, 

as he had left the Learn Center after only a few days. 

The DHHR subsequently filed a motion to revoke petitioner’s improvement period due to 

his failure to complete a drug rehabilitation program and his unauthorized contact with the 

mother, and the circuit court held a hearing on the matter in January of 2018. However, the 

hearing was continued, and petitioner was ordered to comply with treatment at Amity, a 

detoxification facility. An MDT meeting was held in February of 2018, during which the 

members discussed petitioner’s participation at Amity. The records from the program indicated 

that petitioner did not fully cooperate with the services offered. Despite agreeing to attend 

follow-up meetings at a Day Report Center, petitioner failed to do so, and also failed to comply 

with Amity’s recommendation to enter a long-term inpatient treatment program. In fact, after 

having been released from the program, petitioner avoided drug screens and on one occasion that 

he did screen, he tested positive for benzodiazepines. Based upon petitioner’s failure to adhere to 

the terms and conditions of his improvement period, the DHHR and the guardian recommended 

termination of his parental rights. 

Later in February of 2018, the circuit court held a dispositional hearing. Petitioner failed 

to attend but was represented by counsel. The DHHR proffered that petitioner failed to 

participate in the case and recommended that his parental rights be terminated. After hearing 

arguments, the circuit court found that petitioner was a drug addict and failed to comply with 

substance abuse treatment. Specifically, petitioner left one rehabilitation program against 

medical advice after four days. Petitioner completed the Amity program, but did not attend all 

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group meetings, did not attend follow-up meetings at the Day Report Center, and did not comply 

with their recommendation of long-term inpatient treatment. After having been released from the 

program, petitioner provided a positive drug screen and thereafter avoided services providers 

attempting to administer drug screens and provide parenting and adult life skills classes. 

Petitioner also failed to comply with domestic violence counseling and was arrested for 

shoplifting. Based on these findings, the circuit court concluded that there was no reasonable 

likelihood that petitioner could correct the conditions of abuse in the near future and that 

termination was necessary for the child’s welfare. It is from the March 23, 2018, dispositional 

order terminating his parental rights that petitioner appeals.2 

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 

when he was not present for the dispositional hearing. However, petitioner provides no citation 

to the record or any authority regarding this argument and, apart from his assignment of error, 

entirely fails to provide any argument on this issue. Accordingly, we decline to address this 

argument on appeal pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate 

Procedure, which 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[.] 

The Court may disregard errors that are not adequately supported by specific 

references to the record on appeal. 

2

R.P.’s mother is participating in an improvement period. Pending her successful 

completion of the same, the permanency plan for the child is to return to her care. The concurrent 

alternative permanency plan is adoption by the foster family. 

3 
Petitioner also assigns as error the circuit court’s termination of his parental rights when 

the record demonstrated that he was attempting to seek treatment for his substance abuse 

problem. Specifically, petitioner argues that his improvement period was “well within the 

boundaries prescribed by the West Virginia Code with regard to the length of an improvement 

period” and that he sought treatment multiple times. According to petitioner, the child’s best 

interests would have been served by providing petitioner additional time to seek long-term 

inpatient rehabilitation. We find petitioner’s argument to be without merit. 

West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental 

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 

children’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[.] 

The record demonstrates that petitioner substantially failed to participate in the 

proceedings. As part of his improvement period, petitioner was ordered to participate in services, 

including entering a drug rehabilitation program and domestic violence counseling. However, 

petitioner left one rehabilitation program against medical advice after only four days. Further, 

while petitioner did complete a second program, the Amity program, he did not follow through 

with Amity’s recommendation to enter long-term inpatient rehabilitation and did not attend 

follow-up meetings at a Day Report Center, as agreed. Petitioner tested positive for controlled 

substances only weeks before the dispositional hearing and was difficult to contact in order to 

provide random drug screens, parenting classes, and adult life skills classes. Moreover, he failed 

to attend any domestic violence counseling and was arrested for shoplifting during his 

improvement period. 

To the extent that petitioner argues that he should have been given more time to comply 

with his improvement period because the same was not barred by time requirements under the 

West Virginia Code and because he entered a rehabilitation program, we find that he failed to 

establish that he was entitled to an extension. Pursuant to West Virginia Code § 49-4-610(6), 

[a] court may extend any improvement . . . 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. 

4 
 

 

 

Here, petitioner did not substantially comply with the terms of his improvement period and, as 

such, failed to demonstrate that he was entitled to an extension of the same. 

Because petitioner failed to address the conditions of abuse that led to the filing of the 

petition despite having ample time and resources, we find that the circuit court did not err in 

determining that there was no reasonable likelihood that petitioner could correct the conditions 

of abuse and neglect and that termination was necessary for the child’s welfare. While petitioner 

states that he needed more time to comply with services, we have previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W.Va. Code [§] 

49-6-5 [now 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 W.Va. Code [§] 49-6-5(b) [now 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). 

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Based upon the evidence 

outlined above, we find no error in the circuit court’s termination of petitioner’s parental rights. 

Lastly, because the proceedings in circuit court regarding the mother are still ongoing, 

this Court reminds the circuit court of its duty to establish permanency for the child. 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 

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 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 Procedures 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 W.Va.Code § 49-6-5(a)(6) [1996] [now 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 

5 
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 can not 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 

March 23, 2018, order is hereby affirmed. 

Affirmed. 

ISSUED: October 12, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Paul T. Farrell sitting by temporary assignment 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Allen H. Loughry II, suspended and therefore not participating 

6