1 

### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

In re M.S., F.S., R.B.

- 1, J.B., H.B.

- 1, and H.B.

- 2

No. 20

- 0452 ( Pleasants County 19

- JA

- 9, 19

- JA

- 10, 19

- JA

- 11, 19

- JA

- 12, 19

- JA

- 13, and 19

- JA 14 )



### MEMORANDUM DECISION

Petitione r Mother A. C ., by counsel Jessica E. Myers , appeals the Circuit Court of Pleasants County’s March 2, 2020 , order terminating her parental , custodial, and guardian ship rights to M. S., F.S., R.B.

- 1, J.B., H.B.

- 1, and H. B.

- 2

. 1 The West Virginia Department of H e alth and Human Resources (“DH HR”), by counsel Chaelyn W. Casteel

, filed a response in support of the circuit court’s order. The guardian ad litem for M.S. and F.S.

, B. Scott Wolf e , filed a response on behalf of th ose children in support of the circuit co u r t’s order. The guardian ad li tem for R.B.

- 1, J.B., H.B.

- 1, and H. B.

- 2
, Michael D. Farnsworth

, filed a response on behalf of th ose children also in support of the circuit court’s order

. Petitioner filed a reply. On appeal, petitioner argues that the circu i t court erred in adjudicating her as an abusing parent and denying her motion for a post

- adjudicatory improvement period. 2

1 Consistent with our long

- standing practice in cases with sens it ive facts, we use initials where necessary to protect the identities of those invol ved in th is c a se. See In re K.H. , 235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II , 23 0 W. Va . 731, 742 S.E.2d 419 (2013); State v. Brandon B. , 218 W. Va. 3 24, 624 S.E.2d 761 (2005); State v. Edward Charles L. , 183 W. Va. 64 1, 398 S.E.2d 1 23 (19 90)

. Ad d itionally, because R.B.

- 1 shares initials with his father

, R.B.

- 2 , we will refer to them as R.B

. - 1 and R.B

. - 2, respectively, throughout this memorandum decis io n. Also, because two children share the same initials

, we will refer to them as H.B

. - 1 an d H .B.

- 2 , respectively, throughout this memorandum decisio n.

2 Petitioner does not raise an assi gnment of error in regard to the termination of h er parental , custodial, and guardian ship rights. In petitioner ’ s reply, she mention s in a sin g le sentence that she is “ simultaneously objecting to the t ermination o f her parental rights. ” However, p etitioner provides no argument whatso e ver with rega rd to this claim . This failure is in direct contra diction of Rule 10(c)(7) of the West Virginia Rules of Appellate Pr ocedure req uiring that

[t]he brief must c ontain an argument exhibiting clearly the points of fact and law presented, the sta n dard of revie w applicable, and citing the authorities relied on

, (continued . . .)



### FILED December 10, 2020

EDYTHE NASH GAISER , CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2 This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and t he decisional process would n ot 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 mem o r andum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In A pril of 2019, the DHHR filed a child abuse and neglect petition against petitioner and R.B.

- 2. The DHHR investigated after law enfo r c ement intervened during a dom estic violence incident at the home and arrested R.B.

- 2 , the father of several of the children at issue

. Specifically, R

. B.

- 2 returned home intoxicated late one night and attacked then

- nine

- year

- old M.S. R.B.

- 2 slapped M

. S. i n the face

, chased hi m ou tside

, pushed him onto the concrete

, and then dragged M.S. b ehind the house where he kicked him in the ribs while yelling profanities at him. R.B.

- 2 then took M.S. inside the house and petitioner called 911. The DHHR further allege d that R.B.

- 2 drank a lcohol on a regular basis and that domestic violen ce occurred often in the home

. The DHHR described previous referral s in December of 2018, Febru ary of 2019, and early April of 2019 regarding domestic violence , inadequate food, and unf i t living conditions in the home. Finally, the DHHR outlined the extens ive history of services provided to petitioner, including an improvement period in another case , which petitioner successfully completed in 2017. The DHHR amended the petition a week la t e r , alleging that pe titioner was aware of R. B.

- 2 ’s violent nature an d propensity to commit domestic violence yet continued to reside with him, which exposed the children to the risk of maltreatment. 3 The DHHR further alleged that it

under headings that correspond with the assi gnments of error. The argume n t m ust contain appropriate and s pe cific citations to the record on appeal, including citations that pinpoint when and how the issue s in the assignments of error were presented to th e lower tribunal. The Court may disregard erro rs that are not adequ ately s u ppo rted by specific references t o the record on appeal.

Additionally, in an Administrative Order entered on December 10, 2012 , Re: Filings That Do Not Comply With the Rules of Appe llate Procedure, this Court specifically noted that “[b]riefs that lack ci t ati on of authority [or] fail to st ructure an argument applying applicable law” are not in compliance with this Court ’ s rules. Furth er, “[b]riefs with arguments that do not contain a citation to legal authority to support the ar gument presented and do not ‘ con tain appropriate and specific c itations to the record on appeal .

. .’ as required by rule 10(c)(7)” are not in co m pliance with this Court ’ s rules. Id. “A skeletal ‘argument,’ re ally nothing more than an assertion, does
not preserve a claim

. . . . Jud g es are not like pigs, hunting fo r truffles buried in briefs.” State v. Kaufman , 227 W. Va. 537, 555 n.39, 711 S.E.2d 6 07, 625 n.39 (2011) (citation omitte d). Because petitioner ’ s br ief with regard to this assertion is inadequat e and fails to comply with R

u le 10(c)(7) of the Rule s of Appellate Procedure, we decline to address this issue on appeal.

3 According to the record , R.B.

- 2 had at least two prior convictions for domest ic battery and was charged and ultimately convicted of third offense domesti c batte r y , a felony

. (continued . . .)3 repeatedly requested t h a t petitioner remov e R.B.

- 2 from the home and leave her abusive rela t i onship with him

. Thereafter , petitioner waived her preliminary hearing. The DHHR submit ted a court summary in late August of 2019, requesting that the circuit court adjudicate petitione r and not give her a n improvement period because she had “been involv e d in the Court process several times in the past with improvement periods given.”

The circuit court held a contested adjudicatory hearing in September of 2019

. R.B.

- 2 testified that o n the day of the incident, M.S. had refused to go to s c h ool and R.B.

- 2 and petitione r, with the help of the school principal, physically for ced the child into a vehicle and took him to school. R.B.

- 2 testified that he planned to discipline M.S. that evenin g

. He admitted to drinking alcohol throughout the day a n d taking several of the children to a restaurant where he continued to drink alcohol . Petitioner went to the restaurant and retrieved the children from R.B.

- 2 who then went to a neighbor’s home and co n t inu ed drinking alcohol. R.B.

- 2 stated that he went h o m e and spank ed M.S. but denied all other allegations of abuse against the child . R.B.

- 2 f urther admitted to being an alcoholic but denied all allegations of verbal and physical abuse against petitioner

, des pite his previous convictions for domestic batter y aga inst her

.

The DHHR presented the testimony of several law enforcement officers . The first officer testified that he responded to petitioner’s 911 call on the night in question and that he took
p e t iti oner’s statement as well as the statement of the ne ighbor at who s e residence R. B.

- 2 had been drinking

. The officer stated that R.B.

- 2 denied touching M.S. , despite the fac t t hat the child had m arks consistent with being slapped and kicked in the ribs a n d was found crying hysterically by the police . He also explained that he wa s very f amiliar with the residence a s t he sheriff’s department ha d been called out to the home numerous times due to dome stic violence and R.B.

- 2’s regular alcohol abuse. A local c h ief of police also testified that he was familiar with the family due to th e histor y of “domestic related, al co hol related” 911 calls. He further confirmed R.B.2’s criminal convictions for domestic battery and stated that he personally instructed petitio n e r to remove R.B.

- 2 from the home “on several occasions.”

Petitioner testi fied tha t she knew petitioner had be en drinking alcohol the day of the incident . She stated that when R.B.

- 2 came home and attacked M.S. she could not stop him because she did not “ know how to stop him.” A fter she heard M.S. screaming inside the house

, pet itioner called 911 . She confirmed a lo ng history of domestic violence with R.B.

- 2 and acknowledged that he often insulted her in front of the children . Sh e had no expla nation for w h y she knowingly stayed in the abusive relationship with him

. Petit ioner stated that she g ave R.B.

- 2 an ultimatum in February o f 2 019, that he could no longer drink alcohol . S he receiv ed advice from her local Al

- Anon 4 group to leave R.B.

- 2 if h is alcoholi s m became “problematic.” However, despite R.B.

- 2 ’s continued alcohol abuse , petitione r allowed R.B.

- 2 to continue living in the home

. P et itioner testified that R.B.

- 2 was ha rmful when he drank alcohol yet denied that he was a danger to herself and the chil d r en. Confusingly, petitioner also acknowledged that

4 Al

- Anon is a support group f or the f riends and relatives of alcoholics and is associated with Alcoholics Anonymous.4 domestic violenc e perpetrated aga inst her negatively impacted the children. Fin al ly

, petitioner disclosed having over thirty different contacts with the DHHR since 2017 due to the ongoing domestic violen c e and alcoho l abuse in the home , including a safety plan implemented in June of 2017 that required R.B.

- 2 to stop drinking alcohol and te mp ora rily leave the home.

Ultimately, the circuit court adjudicated petitioner as abusing parent. In its order , the

c ircuit cou rt found that

the West Virginia Supreme Court of Appeal s has time and ag ain stated that domestic violence is a factor to be c on sid ered in determining the fitness of a parent and has found that domestic violence is abuse of a child where the ch i l d has been witness to such acts of violence. In re Stephen Tyler R ., 213 W. Va. 725
, [584] S.E.2d 581 (2003).

The circuit court furthe r fou nd that petitione r knew of R.B.

- 2’s chronic alcohol abuse and domestic violence ; sought and received education an d advice from Al

- Anon regarding leaving R.B.

- 2; admitted to allowing R.B.

- 2 to stay i n the home despite violating her ultimatum to stop dr in kin g alcohol; acknowledge d that R.B.

- 2 ’s alcohol abuse and resultant violent conduct posed a threat to the health, s a f ety, and welfare of the children; and that she decided to stay in a relationship wi th R.B.

- 2 despite his violent nature and propensity t o com mit acts of domestic violence. Additionally , the circuit court found that petitioner failed to remove the childre n and otherwise “act appropriately in protecting the children and co ntinued to expose said minor children to the r isk of abuse, neglect, m al tre atment, and injury.” Finally, the circuit court found that petitioner knowingly allowed R.B.

- 2 to inflict mental a n d emotional injury on the children.

In January of 2020, t he cir cuit court held a dispositional hearing

. The guardians previously file d rep orts each recommending the termination of petitioner’s parental rights to all children. Likewise, the DHHR moved f o r the termination of petitioner’s parental rights. Petitioner test ified that she kn ew R.B.

- 2 continued to d rink alcohol outside of the h om e d espite her ultimatum to stop drinking

. She also testified that she stopped attending Al

- Anon meetings even though t hey were helpful to her. S he further testified that she had previo usly completed an improvement period in 201 7 , which included couples ’ co unseling, parenting and ad ult life skills classes

, and supervised visitations

, but did not include domestic violence c ounseling. Petitioner stated that the children were returned to he r care in 2017. R .B.

- 2 testified that domestic viole nce in the home wa s a “ normal everyday activit y ” and often occurred in the presence of the children

. He further testified that petition e r was unable to control the children and keep the home clean and or derly. However, h e argued that he manipulated petiti oner and that she de served an improvement peri od.

By order entered on March 2, 2020 , the circuit court denied petitioner’s motion for a n improvement p eriod and terminated her parental , custodial, and guardian ship rights to the children. In support, the circuit court found that petitioner had r ecei ved extensive services throughout the years, both by the DHHR and other sources , yet continue d to expose the children to domestic vi olence. As such, petitioner was unable to show a change in circum stances which would warrant an improvement period. The circ uit court noted petitioner’s long history of domestic violence with R.B.

- 2, w hich was a “norm a l , daily occur rence, and often occurred in the5 presence of the children.” Finally, the circuit court fo und that petitioner gave no credible excuse for her inabili ty to protect the children by ceasing her abusive relationship with R.B.

- 2. Base d on this evi d e nc e , the circuit court concluded that there was no reasonable lik elihood that the conditions of abuse and neglect could be substantially corrected in the near future and th at termination of petitioner’s parental , custodial, and guardian ship rights was ne c e ssary for the children ’s welfar e. Peti tioner now appeals the March 2, 2020
, dispositional order

. 5

Th i s Court has previ ously established the following standard of review in cases such as this:

“Although conclusions of law reached b y a circuit court are subjec t to de

novo review, when an action, such as an abuse and neglect case, is tried upon the facts w ithout a jury, the circuit court shall make a determination based upon the evidenc e and shall make findings of fact and conclusio n s of law as to whether such c hi ld is abused or neglected. These findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence t o support t he finding, the reviewing court on t h e entire evidence is left wit h the definite and firm conviction that a mistake has been committed. Ho wever, a reviewing court may not overturn a finding simply because it would have decided the case different ly, and it must affirm a finding if the circuit c ourt’s account of the eviden ce is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffan y Marie S. , 196 W. Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T

., 2 28 W. Va. 8 9, 717 S.E.2d 873 (2011).

On appe a l , petitioner argues that the c ircuit court erred in adjudicating her as an abusing parent because sh e did not fail to protect the children from R.B.

- 2’s domestic abuse. According to petitioner, she did not k now that R. B.

- 2 was going to come home and atta c k M.S., and therefore, she di d not knowingly fail to protect the children. Furthermore, petitioner co ntends that she acted app ropriately by taki ng M.S. and several other children out side to escape R.B.

- 2, cal ling 911

, giving a statement to the police, and t aking M.S. to the hospital t he next morning

. She also argues that the circuit court improperly consi dered her extensive histo ry of domestic vio lence, referrals to the DHHR, and 911 calls to the police becaus e they wer e not “conditions existing at the tim e of the filing of the petitio n. ” Because the children were returned to petitioner and R.B.

- 2 in 2017 after the successful comp letion of their im provement periods, petitioner contends that the DHHR and the cou rt condoned the reunification of th e family. We d isagree

, and find that petit io ner is entitled to no relief.

5 R.B.

- 2’s parental , custodial, and guardian ship rights to the children were terminated below. The father of M.S. a nd F.S. is nonabusing

, and the children remain in his ca r e. The
per manency plan for R.B

. - 1 and J.B. is adoption together by their fost er family

. H

. B.

- 1 and H

. B.

- 2 are placed together in a second foster home with a permanency plan of ad option in that home.6 We have previously held as follows:

At the conclusion of the adjudicatory h earing, the court shall m ake a determinatio n based upon the evidence and shall make findings of fact and

co nclusions o f law as to whether such child is abused or neglected . . . . The findings must be based upon conditions existing at the time of the filin g of the petition and pro ven by clear and c onvincing evidence.

In re F.S. , 233 W. Va. 538, 544, 759 S.E.2d 769, 775 ( 2014). This Court has ex plaine d that “‘clear and convincing’ is th e measure or degree of proof that will produce in the mind of the factfi nder a firm belief or con viction as to the allegations sought to be established.” Id . at 546, 759 S.E.2d at 777 (cit a t ion omitted). However, “ the cl ear and convincing standard is ‘inte rmediate, being more than a mere preponderance, but not to the extent of such certainty as is
req uired beyond a rea sonable doubt as in criminal cases.’” Id. (citation omitted). Fu rther,

“ [ W est Virginia Code § 49

- 4

- 601 (i ) ], requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition

. . . by clear and c onvincing [evidence].’ The statute, however, does not specify an y particu l a r manner or mode of testimony o r evidence by which the [DHHR] is

o bligated to meet this burden.” Syllabus Point 1, In Interest of S.C. , 16 8 W.Va. 366, 284 S.E.2d 8 67 (1981).

Syl. Pt. 1, In re Joseph A. , 199 W. Va. 438, 485 S.E.2d 176 (1997) ( c itations o m itted).

Contrary to petitio ner ’ s argument on appeal, the DHHR alleged, and she was adjudicated of, a history of chronic domestic violence, not a sin gle incident. The petitio n contained not only details f rom the n ight R. B.

- 2 attac k ed M.S. but also list e d the instances where the children were previously removed from the home and place d in DHHR custody as well as the d ates of services

r eceived by petit ioner du ring her previ ous safety plans and child abuse an d neglect proc eeding in 20 17. At the adjudicator y hearing, evidence established R. B

. - 2 ’s p revious con vic tions of domestic violence , the famil y ’s turbulent histo r y with law enforc eme nt regularly being called to the home, and the family ’s past DH HR r eferr als. All the evidence at adjudication concerning ad d i tional instances of d o mestic violence in the month s and years leading up to the petition’s filing c learly spoke to this c hroni c c ondition, a s it existed when the petition was filed. Inde e d, in h er reply brief

, petitioner con cedes that “ prior acts of abus e or neglect are releva nt in [current] abuse and neg lect proceedings. ” However, p etitioner’s argument concerning the eviden ce introduced at ad judication establishing other instances of domestic vi olence i gnores the fact that the petition alleged chronic do m e stic violence an d chron i c failure to protect the child ren

. Therefore , c ontrary to petitioner’s argume nt that the DHHR w as p rohibited from presenting evidence of other instances of domestic violenc e, pet iti oner ’s extensive history of CPS involvement, and t h e family ’s extensive co ntacts with law enforcement or that the circuit court was prohibited from cons idering such evidence, it is cle ar that this evidence was p roperly admitted and considered

.

Addition a lly, we find no error in the circuit court’s adju d i cation of petitioner as an abusing parent. West Virginia Code § 49

- 1

- 201 defines “abused child” as7 [ a] child whose health or welfare is being harmed or threatened by . . . [a] parent . . . who kn owingly o r intentionally inflicts, attempts to inflict, or k nowingly allows another person to inflict

, physical injury or mental or emotional injury, upon the ch ild or another child i n the home

.
( E mphasis added). According to the evidence gathered at the adjudicat ory hearing , petitioner knew several important fa c t s on the date of the in cident in the underly ing petition : 1) R.B.

- 2 was

a chronic alcoholic , 2) R.B.

- 2 became violent when intoxicat ed, 3) R.B.

- 2 regularly perpetrated domestic violence upon petit ioner and had done so for years

, 4) R. B.

- 2 continued to dr i n k alcohol despite her u ltimatum and drank a lcohol on the day of the incident, 5) R.B.

- 2 was the disci plinarian of the child ren, 6) R .B.

- 2 was angry about M.S.’s behavior the morning of the inciden t and argu ed with petitioner throughout the day about it, a n d 7) petitioner retrieve d several of the children from R.B.

- 2 at a restaurant on the night of the i ncident

. In light of these facts

, the circuit court found petitioner’s defense that she had no id ea R.B.

- 2 wou ld come home extremely intoxicated and attack h er or another member of the family completely incredible. “ A reviewing court cannot assess witness credibi lity through a record. The trier of fact is uniquely situated to make such determinations and thi s Court is not in a position to, and will not, seco n d guess such determina tions.” Michael D.C. v. Wanda L.C. , 201 W. Va. 381, 388, 497 S.E.2d 531, 538 ( 1997). Re gar d i ng petitioner ’ s con tention that the DHHR and the court condoned R.B.

- 2 livi ng in th e home

, she ignores th e evidence that law enforcement o ffi c e rs , CPS worke rs, and support gr oup members advised her or requested that R.B.

- 2 be removed from the home s o that she cou ld prevent s uch an incid ent that occurred with M.S. Pe titioner knowingly ign ored th is advice at her own per il and continued to p lace h e r childre n in danger. Accordingl y, we find no error in the circuit court ’s finding tha t petitio ne r abused and neglected the c hildren.

Ne xt, petitioner argues that the circuit court err ed i n denying her motion for a post

adjudicat ory improvement period a n d that it improperly appl ied the standard for a post

dispositional improvement period

. Petitioner contends that she was like ly to fully participate in

an improvement period because she “ to ok all appropriate steps ” on the date of the incident with M.S.
, p r e viously successfully comp lete d an improvement period i n 2017 , and pa rticipated in
sup ervised visitations with the children

. Finall y, petitio ner argues that t he DHHR should have provided he r domestic violence counseling if a n improv ement period were grant e d

.

This Cou rt has clearly held that “[t] h e circuit court has the discretion t o refuse to grant an improvement period when n o improvement is likely. ” In re Tonjia M. , 212 W. Va. 443, 448, 573 S.E .2d 354, 359 (2002). Petitioner is correct that in order to o btain an imp rovement period, West Virginia Code § 49

- 4

- 610 requires a parent t o prove that they are likely to fully comply w ith its terms and conditio ns

. However, s he fails to recognize th at entitlement to an improvemen t peri od is not absolute even if th i s burden is satisfied, as it is clear from the authority cited above granting a circuit court discretion to deny improvement p eriods when it f inds that no improvement is likely. As outlined above, upon petitioner’s repeated failure to remove R.B.

- 2 from t he home despite her own ultimat u m, the requests of law enfo rcement and the DHHR, and the advice of her Al

- Ano n gro up, petitione r was u nable to remedy the cond itions of abuse and neglect

. When questioned why she refused to leave the r elationship wi th R.B.

- 2
, p etitio ner gave8 no reasonable explanation

. When asked if she would return to a relationship with R.B.

- 2 onc e he was rel eased from pr ison, she indicated that she may. Petitioner ’ s testimony establish ed that she

was a ware that do mestic violence i n the home n e gatively impacted the children yet , confusingly, claimed that R.B.

- 2 was not a danger to hersel f and the children

. We have p revio usly held that failure to acknowledge the issues of abu se a nd neglect render an improvement period an “exercise in futility. ” I n re Timber M. , 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Here, peti tioner clearly fa i led to acknowledge the conditions of abuse and neglect, as evidence by t h e circuit court’s detailed findings regarding petitioner’s long hist or y o f multiple abuse and neglect pr ocee ding s an d CP S involvement that resulted in petitioner ’ s prior adjudication as an a busing parent and a sa fety plan that required R.B.

- 2 to leave the home if he could n ot remain sober

. As such, we find no abuse of disc re ti o n in the circuit court’s determination that petiti oner was incapable of making permanent change in its denial of her motion for a n improvement period. While pe titioner attacks the ci rcuit court’s finding tha t she failed to show a change in c ircumstanc es , w h ich is the standard for the granting o f a subsequ ent impro vement period

, the record nonethe less supp orts the denial of a post

- adj u dicatory improvement period as peti tioner was unlikely to comply with the same. See W

. Va. C o de § 49

- 4

- 610 (3)(D). Ther efor e, we fin d that petitioner is entitled to no relief.

For th e foregoing reasons, we find no error i n the decision of the circuit court, and its March 2, 2020 , order is h ereby affirmed.

Affirmed.

ISSUED : December 10, 2020

CONCURRED IN BY :

Chief Justi ce Tim Armstead Just ice Mar g aret L. Workman Justice Elizabeth D. Walker Justic e Evan H. Jenkins Justice John A. Hutch ison