1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.N.

No. 2 2

- 0061 ( Calhoun County 20

- JA

- 32 )



### MEMORANDUM DECISION

Petitioner M o ther A. K. , by counsel Leslie L. Ma ze , appeals the Circuit Court of Calhoun County’s Dec ember 23 , 2021, order terminating h er parental rights to C.N

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Katica

Ribel , filed a response in support of the circuit court’s order. The guardian ad lite m, To n y
M organ , filed a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her parental rights without first granting her an improvem ent period

. 2

1 Consistent with our long

- standing practice in case s wi th sensitive facts, w e use initial s where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 773 S.E.2 d 20 (2015); Melinda H. v. William R. II , 230 W. Va . 731, 742 S.E.2d 419 (2013); State v. Brando n B.

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

L. , 183 W. Va. 641, 398 S.E.2d 123 (1990).

2 Petitioner also raises a second assignment of error in which she alleges that the circuit

court erred in failing to reinstate supervised visi tatio n be tw een her and the chi ld . Ho wever, petitioner provides no authority in support of this assignment of error, in violation of R u le 10(c)(7) , which require s that “ [t]he brief must contain an argument exhibi ting clearly the points of

. . . law presente d , th e st an dard of review appl icable

, and c iting the authorities relied on

. ” ( E mphasis added). Additionally, in an Administrative Order entered December 10, 201 2, Re: Filings That Do Not Comply With the Rules of Appellate Procedure, the Court specifically not e d

tha t “[b]riefs that lack citat ion of authority [or] fail to structure an argument applying applicable law” and “[b]riefs with arguments that do not contai n a citation to legal authority to support the argument presented” are not in compliance with th is C o urt’ s rules. In that orde r, the Court went on to instruct that “all of the requirements of the Rules must be strictly observed by litigants” because “[t]he Rules are not mere procedural niceties; they set forth a structured method to permit litigants and t his Co urt to carefully re view e ach cas e.” In ordering that all litigants before this Court must comply with the Rule s of Appellate Procedure, the Court cau tioned that “[p]ursuant to Rule 10(j), failure to file a compliant brief ‘may result in the Supr eme C ourt

(continued . . . ) 

### FILED
May 12, 2022

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 This Court ha s con s idered 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 t he re c ord 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 October of 202 0, th e DHHR filed a petition alleging that petitioner and t he father engaged in domestic violence in the child ’ s presence, including an incident in which the father

bit the mother ’ s ear and caused it to bleed . The pet ition also alleged that petitioner expo sed t h e child to ina ppropriate i ndividuals and kn own drug users. Finally, the petition alleged that

pet itioner abused drugs. According to the petition

, petitioner attempted to submit to a drug screen but could not produce a urine spec imen and repeatedly vo mited

. Due to con cerns about

with drawal, the technician administering the screen sent petitioner to the emergency room . Based on the foregoing, the DHHR alleged that petitioner abused and neglected the child.

At a n adjudicatory hearing in December of 2 0 20, p e titioner stipul ated to the allegations against her, including that her substance abuse neg atively affected her ability to parent and that she expos ed the child to domestic v iolence. Accordi ngly, th e circuit court adjudicated pe ti tioner

as an abusive and n e glectful parent.

Thereafter, petitioner filed a motion for a post

- adjudicatory im provement period.

H o wever, that motion was held in abeyance after petitioner was a ccepted into F a mily T r eatment

C ourt in Apri l of 2021. Unfor tunate ly, petitioner was r em ove d f rom Family Treatment Court roughly sixty days l ater

. During the hearing on petition er ’ s removal, the probation officer who worked with petitio ner in the p rog ram testified that petitioner violated several rules of the

program , including permi tt in g an ind i vidual t o stay in her home despite the fact that he was on parole and previously had his parental rights to his own child terminated. During the hearing, petitioner testified that she “ never wanted to do ” Family Treatment Cou rt but “ kind of just g ot pushe d into it because of [her] old lawyer. ” When asked if she had previously stipulated to being

an abusive and neglectful paren t, petitioner responde d, “ [n] o, I ’ m not. ” Later in her testimony, petitioner was unequivocal and stated

, “ I ’ ve ne ver abuse d or negle c ted my s on at all, ever. ”

Petitioner went on to ass ert that her stipulation “ was over domest ic violen ce ” and that she “ never did drugs around [her] son. ” Petitioner also a dmitted to being in a sexua l relationship with the

individual found in her h om e. Dur i ng her t est imony, despite admitting to certain violations, petitioner blamed personnel from the treatment cou rt, claiming that she “ ha[ d] a feeling they

don ’ t like ” her and tha t they harassed her.

r efusing to consider the ca se, de nying argument to the derelict party, dismissing the case from the docket, or imposing such other sanctions as the Co urt may deem appropriate.’” Because petitioner provides no authority in support of this assignme nt of err or , we decline to add ress it on

ap peal.3 In November of 2021, the court held the final d is positi o nal hear ing and denied petitioner ’ s motion to reinstate her visits with the child, which had been suspended after the child engaged in self

- harm following visits. During the hearing, the court took judicial notice of

pe titioner ’ s testimo ny from the hearin g on her r emoval from Family Treatment Cou rt. P etitioner presented thre e witnesses on her behalf in regard to her participation with services

. According to the court, petitioner ’ s wi tnesses “ all outlined prob lems with [petitioner ’ s ] . . . partici pati on in

s ervices a nd her failure to acknowledge the issues which caused the case to be filed. ”

Addi tionally, other witnesses dis cussed petitioner ’ s refusal to accept substance abuse treatment and her violation of the rules of super vised visitatio n , inclu ding that p etitioner was suspected of being under the in fluenc e of drugs at some vi sits. Accor ding to one witness, petitioner

consist ently blamed other s for her p rob le ms.

The court also foun d it “ m ost significant” that petitioner testi fied that she “ nev er r eally

a

bused or n egle cted ” the child and that she ad mitted to doing drugs but b elieved that he r “ case is

over domestic vio le nce, not drugs. ” In regar d to petitioner ’ s motion for an improv ement period,

t he court found that petitioner “ failed to acknowle dge her dr u g addi c ti on has negatively impacted her ability to parent , and in fact, s he now recants her sworn ad missions made at the adju dicatory hearing. ” Accor ding to the court, petitioner ’ s tes timony “ reveals a lack of even a basic

apprec iation for the h arm she ha s caused h er son. ” The court further found that petitioner w as given the o pportunity to address her issues through Family Treatment Court but “ failed miserably

, ” as she was removed within two months and claimed that she was harassed in t hat

progr am. Accord i ng to t he court

, although petitioner sought services after her r emoval fr om that

program, “ it is apparen t that she is m erely ‘ going through the motions ’ of tr ying to show she will parti cipate and she has not been honest wit h those who are pr ovid ing servic e s. ” As su ch, th e court denied pet itioner ’ s motion. The court further foun d that this evidence supported findings

that there was no reason able likelihood that pet itioner could subs tantially correct the conditions

of abuse an d neglect in the near futu re and that term ination of her rights was necessary for the

child ’ s he alth, well

- be ing, an d safety

. Accordingly, the court terminated petitioner ’ s parenta l rights to the child

. 3 It is from the dispositional order that petiti oner ap peals.

T he Court h as previously established the following standard of review:

“Al though 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 t he facts without a ju ry, t he ci r cuit court shall make a determination based upon the

evidence and shall ma ke findings of fact and conclusions of law as to whether

such child is abus ed or neglected. These findings shall not be set aside by a reviewing court unless clearly erron eous. A fi n ding is cl early erroneous when, although there is evidence to support the finding, the reviewing court on the entire

evidence is left with the defini te and firm conviction that a mistake has been committed. However, a review ing court may not ove rturn a fi n ding simpl y because it would have decided the case differently, and it mus t affirm a finding if

3 The fa ther’s parental rights were also terminated. The permanency plan for the child is adoption in the curr ent placement

.4 the circuit court’s account of the evidence is plausi ble 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 alleges that the circuit court erred in denying her motion for an improvement period. Without belabori ng petitioner ’s speci fic a rgu me n ts in supp ort of this assignment of error, we find that petitioner ’s reliance o n outdated law and her failure to fully acknowledge the conditions of abuse and neglect at issue are determinative.

P etitioner argues that her problems early in the proc eedin g s “ do not con stitute

‘ compelling circumstances ’ sufficient to deny [her] . . . the opportunity and any chan ce of

rehabilitation. ” In support of this position, petitioner cites to the following : “ W.Va. Code, 49

- 6

- 2(b) (1984), permits a parent to m ove t he co u rt for an impr ovement period which shall be allowed unless the court finds compelling circumstances to justify a denial. ” Syl. Pt. 2

, State ex rel. W. Va. Dep ’ t of Hum. Services v Cher yl M. , 177 W . Va. 688, 356 S.E.2d 181 (1987). Her

reliance on this sta n d ard is mis placed , as it was “based upon language in a former version of [West Virginia Code § 49

- 4

- 610], prior to the 1996 amendments, which stated that a court was to provide an improvement perio d unless compelling circumstances indicated other wise. ” In r e Charity H. , 215 W. Va. 208, 216 n.11, 599 S.E.2d 631, 639 n.11 (2004). However, “[w]ith the deletion of such language from the statute, the compelling circumstance concept is no longer

relevant to this Court ’ s investigation.” Id . The current s tatut e re q u ires that the parent “demonstrate[ ], by clear and convincing evidence, that [he or she is] likely to fully participate in the improvement period.” W. Va. Code § 49

- 4

- 610(2)( B ).

However, c ritica l to the resolution of the instant matter , we hav e pre viou s l y held tha t

[i]n order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic allega tion pertaining to the alleged abuse and neglect or th e

pe r p etrator of said abuse and neglect, results in making the problem untreatable and in making an improvement period an exercise in futility at the child ’ s

expense.

In re Timber M. , 231 W. Va. 44, 55 , 743 S.E.2d 352, 363 (2013) (citation omitted). As th e ci r c uit

cour t found, p etitioner repeatedly stressed that she never abused or neglected the child , despit e the fact that she sti pulated to having done just that at adjudication. Petitioner also mini miz ed her drug abuse and its impact on the child by test i fyin g that her c ase concerned domestic violence, not substance abuse. Again, substance abuse was an issue to which petitioner stipulated. Based

on the circuit court ’s findings about petitioner ’s refusal to acknowledge the conditions of abuse

and ne gle ct at iss u e , we find no abuse of discretion in denying her motion for an improvement period. In re M.M. , 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) ( “West Virginia law

allows the circuit court discretio n in deciding whether to grant a parent an improv ement

per i o d.” ).5 Fi nally, petitioner argues that the circuit court erred in terminating her parental rights

because she was not given the opportunit y to show that she could modify her behavior and

correct the conditions of abuse and neglect, many of whic h she ass e r ts that she had already begun addressing . This argument ignores the fact that petitioner was given the opportunity to

show sh e could modify her be ha vi or in the form of Family Treatment Court , an o pportunity that

the circuit court found she squan dered by v i olating multipl e rules which caused her remov al from the program

. Far from demonstrating an ability to address her problems, petitioner instead

entered into a relationship with a felon whos e rights to his own child had been involuntar ily

termina ted a nd p e r mitt ed him to reside i n her home . J u st as she refu sed to ac knowledge the conditions of abuse and neglect , petitioner a lso lacked awareness of the reason for her removal

from th is program, as she blamed Family Tre atment Court personnel for harass ing h er a n d

asserted that s he did not want to participate in the p rogram in the first instance. Accordingly, we find petitioner ’ s assertion that she was not given an opportunity to de monstrate her ability to

modif y her behavior to be entirely without merit

.

P e ti t i oner also alleges t hat the circuit court erred in finding that there was no reason able likelihood that she could substantially correct the conditions of abuse and neglect i n the near future when she asserts that she had already address ed or was in th e pr o c ess of addressing thos e conditions. Petitioner cites to several ser vices she was participating in, including substance abuse

treatment, a domestic violence program , parenti ng education, and adult life skills, among other s. Petitioner fur ther cla ims t hat s h e obtained housing, tran sportat ion, and employment. Even taking petitioner ’ s assertions a bout her partic ipation and achievements as tr ue, we have previou sly

ex plained that “ it is possible for an individual to show ‘ compliance with specific aspec ts of the

c ase plan ’ while failing ‘ to improve

. . . [the] overall attit ude and approach to parenting. ’ ” In re

Jonathan Michael D. , 194 W. Va. 20, 27, 459 S.E.2d 131, 138 (1995) (citation om itted)

. T he

circ uit court in thi s matter considered th e evidence p etiti oner r elies on before this Cou rt and

found t hat petitioner was merely “ going through the motions ” in an attempt to de monstrate a likelihood of participation

. T he cou rt further found that petiti oner had been dishon est with her service providers , underc uttin g he r alleged participation an d progress, and was unable to make meaningful change due to her refusal to acknowledge the conditions of abuse and neglect. A s such, the court did not err in finding th at there was no reasonable likelihood t hat petiti oner coul d

sub s tantially correct th e condition s of abuse and neglect in the near fu tu re.

Furth er, we find no error in the circui t court ’ s determination that termi nation of petitio ner ’ s paren tal rights was necessary for the child ’ s wellbeing , given that the r ecord sho w e d

that the child eng aged in harmful behav ior fo llowing visits with petitioner. According to West Virginia Code § 49

- 4

- 604(c)(6 ) , a circuit court may termina te a parent’s parental rights up on these findings. W e have also explained as follows:

“ Termi nati o n of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49

- 4

- 604] . . . may be employed without the use of intervening less

restrictive alternatives when i t is f ound t hat there is no reas onable likelihood under [West Virginia Code § 49

- 4

- 604(d)] . . . that conditions of neglect or abuse can be substantially cor rect ed.” Syllabus point 2, In re R.J.M. , 164 W.Va. 496, 266 S.E.2d 114 (1980).6 Syl. Pt. 5, In re K r istin Y.

, 2 27 W. Va. 558, 712 S .E.2d 55 (2011). As such, we find no error in the termination of petitioner’s parental rights.

F or the foregoing reasons, we fi nd no error in the decision of the circuit cou rt, and its

Dec ember 23 , 2021, order is hereby aff irmed

.

A f firmed.

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