STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.R. and J.M. December 10, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0449 (Kanawha County 19-JA-451 and 19-JA-491) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.M., by counsel Christopher C. McClung, appeals the Circuit Court of
Kanawha County’s April 9, 2020, order terminating her parental rights to A.R. and J.M.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Katherine A.
Campbell, filed a response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, Sharon K. Childers, filed a response on behalf of the children also in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights without affording her an improvement period.
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 July of 2019, the DHHR filed a child abuse and neglect petition against petitioner after
receiving a referral from her landlord that he found one-year-old A.R. alone in the downstairs of
the home with a soiled diaper. The child’s sippy cup appeared that it had been empty for several
hours and the diaper was so heavy that it hung off of her body. It was determined that the child
had been left alone for at least three hours. When the DHHR worker searched the home for a
diaper, petitioner appeared from her bedroom upstairs, which had been blockaded with large totes.
Petitioner became belligerent and cursed and yelled at the worker and the child. Petitioner then
took the child and locked her in the bedroom with her husband, resulting in law enforcement
removing the child. Petitioner was pregnant at the time. Along with this incident, the DHHR
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).
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alleged that petitioner had a referral as recent as June of 2019 for lack of supervision because the
child had fallen several times. In that referral, petitioner claimed that A.R. kept falling off of the
bed and out of the highchair because the child was autistic and would not listen to petitioner,
although the record shows that the child has never been diagnosed with that disorder. Finally, the
DHHR specifically alleged that A.R. was not properly supervised, clothed, or fed, and that she was
placed in an unsafe environment. The DHHR amended the petition in August of 2019, after
petitioner gave birth to J.M.
At an adjudicatory hearing held in September of 2019, a Child Protective Services (“CPS”)
worker testified consistently with the allegations in the petition regarding the specifics of the
landlord’s referral. According to the worker, during the investigation petitioner emerged from her
bedroom and was immediately irate and uncooperative. The worker further confirmed that law
enforcement eventually had to remove the child from petitioner. Additionally, the worker
explained that petitioner had two prior substantiated CPS referrals, including one incident where
A.R. was injured after falling off of the bed. Finally, the worker testified that she initially placed
A.R. with petitioner’s sister but could not keep the child in that home due to the sister’s history of
CPS interventions and that this sister later became belligerent at the hospital when the worker
removed J.M. after his birth. Next, petitioner testified and denied the allegations, asserting that
someone paid the landlord to contact CPS and that he illegally entered her home. She further
denied any inappropriate behavior when A.R. was removed. Having heard the evidence, the circuit
court adjudicated petitioner as an abusing parent. The circuit court then ordered that petitioner
participate in supervised visits and submit to a forensic psychological evaluation.
Petitioner underwent a psychological evaluation in October of 2019. The evaluator raised
concerns with petitioner’s judgment as she relied on her sister for childcare, despite her sister’s
extensive CPS involvement. Rather, petitioner claimed that she and her sister were appropriate
caregivers. When asked why her bedroom door had been barricaded with three large totes,
petitioner answered that the landlord “torment[ed]” her and her husband and they “had to get
away.” Petitioner also claimed that the child had only been left alone for minutes, not hours. The
evaluator noted that petitioner holds “significant negative perceptions” of A.R., which has resulted
in little attachment or bond with the child. The evaluator concluded that “[g]iven her utter failure
to accept responsibility and to exhibit insight, her highly dysfunctional personality traits and
limited intellect, and her concerningly negative perceptions of [A.R.], [petitioner’s] prognosis for
improved parenting, within a reasonable degree of psychological certainty, is very poor.” Finally,
the evaluator stated in the recommendations section of the evaluation that “[w]ithout acceptance
of responsibility, there is no reason to believe [petitioner] would benefit from services.”
In November of 2019, the circuit court held a status hearing, wherein it reviewed and
accepted petitioner’s psychological evaluation into the record. The court discontinued petitioner’s
supervised visits with the child after petitioner live-streamed videos of the visits, complained about
the foster mother, and gave “puffs” of her asthma medicine to A.R. during one visit.
The circuit court held a final dispositional hearing in February of 2020. A CPS worker
recommended termination of petitioner’s parental rights due to her failure to acknowledge the
abuse. The worker stated that although petitioner had participated in services since May of 2019,
petitioner had made no acknowledgments whatsoever and, therefore, had not benefited from the
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services. Next, petitioner testified that she was participating in parenting classes but had no
housing due to her eviction from the apartment. Petitioner also admitted to leaving A.R. alone in
the living room for over three hours and acknowledged that she had prior substantiated
investigations with CPS regarding the lack of food in the home and A.R. falling off the bed on
multiple occasions. Petitioner claimed that DHHR workers were harassing her at work. During her
testimony, petitioner read a statement she prepared, wherein she flatly denied that the children
were abused or neglected. Finally, petitioner stated that she planned on moving out of the state to
live with J.M.’s father, despite his abandonment of the proceedings and likely termination of his
parental rights. At the close of evidence, petitioner moved for a post-dispositional improvement
period. Ultimately, by order entered on April 9, 2020, the circuit court denied petitioner’s motion
for an improvement period, finding that petitioner accepted no responsibility because of her
adamant denial of any abuse and neglect of the children. The circuit court further found that
petitioner had not benefited from services due to this denial. Ultimately, the circuit court
terminated petitioner’s parental rights upon finding that there was no reasonable likelihood that
she could correct the conditions of abuse and neglect in the near future and that termination was
in the children’s best interests. Petitioner appeals this dispositional order terminating her parental
rights. 2
The Court has previously established the following standard of review in cases such as this:
“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 not affording her an improvement
period because her testimony at the dispositional hearing established that she made improvements
throughout the case, participated in all services offered, and maintained employment. However,
petitioner’s argument on appeal ignores the fact that she continued to deny that she abused and
neglected the children throughout the proceedings, even going so far as to read a prepared
statement at the dispositional hearing to that effect. By refusing to acknowledge the conditions of
abuse and neglect at issue, petitioner rendered them untreatable. In re Timber M., 231 W. Va. 44,
2
The parental rights of the father of A.R. were terminated below, as were the parental rights
of the father of J.M. The permanency plan for the children is adoption in their current foster home.
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55, 743 S.E.2d 352, 363 (2013) (“Failure to acknowledge the existence of the problem, i.e., the
truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator 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.”). Further, this Court has repeatedly stressed that
circuit courts have discretion to grant or deny improvement periods and that an improvement
period may be denied when no improvement is likely. In re Tonjia M., 212 W. Va. 443, 448, 573
S.E.2d 354, 359 (2002). Because petitioner did not take the basic step of accepting the truth of the
allegations against her, we find no abuse of discretion in the circuit court’s denial of her motion
for an improvement period
Petitioner also alleges that termination of her parental rights was in error, arguing that the
results of her psychological evaluation “were not sufficient to justify termination of [her] parental
rights and the relocation to another state by the family unit was not unreasonable in light of [J.M.’s
father’s] employment.” 3 We disagree and find petitioner’s argument to be without merit.
The issue of termination is again decided by petitioner’s repeated refusal to acknowledge
the issues of abuse and neglect at issue. Given that petitioner rendered these conditions untreatable
by her failure to acknowledge them, it is clear that the circuit court had before it sufficient evidence
upon which to base its finding that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future. Although the record
3
Within petitioner’s argument, she appears to attack the validity of the petition. Also,
petitioner briefly mentions “capacity issues” and that she is at a “lower functioning level.”
However, petitioner fails to cite to a single case or the appendix record in support of these
assertions. These failures are in direct contradiction of Rule 10(c)(7) of the West Virginia Rules
of Appellate Procedure requiring 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,
under headings that correspond with the assignments of error. The 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. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
Additionally, in an Administrative Order entered on December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, this Court specifically noted that “[b]riefs that
lack citation of authority [or] fail to structure an argument applying applicable law” are not in
compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation
to legal authority to support the argument presented and do not ‘contain appropriate and specific
citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this
Court’s rules. Id. “A skeletal ‘argument,’ really nothing more than an assertion, does not preserve
a claim. . . . Judges 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). Because petitioner’s
brief with regard to these assertions is inadequate and entirely fails to comply with Rule 10(c)(7)
of the Rules of Appellate Procedure, we decline to address these issues on appeal.
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shows that petitioner maintained employment, participated in parenting classes, submitted to a
psychological evaluation, and participated in supervised visitations, her failure to acknowledge the
basic nature of the allegations against her resulted in her failure to benefit from any of these
services. This Court has held that “[i]n making the final disposition in a child abuse and neglect
proceeding, the level of a parent’s compliance with the terms and conditions of an improvement
period is just one factor to be considered. The controlling standard that governs any dispositional
decision remains the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d
743 (2014). Further, the Court has addressed situations such as this by explaining that
we have recognized that “‘it is possible for an individual to show “compliance with
specific aspects of the case plan” while failing “to improve . . . [the] overall attitude
and approach to parenting.” W.Va. Dept. of Human Serv. v. Peggy F., 184 W.Va.
60, 64, 399 S.E.2d 460, 464 (1990).’” In re Jonathan Michael D., 194 W.Va. 20,
27, 459 S.E.2d 131, 138 (1995). Moreover, “‘[t]he assessment of the overall success
of the improvement period lies within the discretion of the circuit court . . .
“regardless of whether . . . the individual has completed all suggestions or goals set
forth in family case plans.”’ In Interest of Carlita B., 185 W.Va. 613, 626, 408
S.E.2d 365, 378 (1991).” In re Jonathan Michael D., 194 W.Va. at 27, 459 S.E.2d
at 138.
Id. at 65, 754 S.E.2d at 751.
Based on petitioner’s failure to acknowledge the conditions of abuse and neglect, we find
no error in the circuit court’s determination that there was no reasonable likelihood that these
conditions could be substantially corrected. Additionally, petitioner’s repeated failure to
acknowledge these conditions also required the termination of her parental rights in order to ensure
the children’s welfare. Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts are to
terminate parental rights upon these findings. Moreover, we have previously held that
“[t]ermination 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 it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(d)] 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 on the foregoing, we find
no error in the circuit court’s termination of petitioner’s parental rights as there was sufficient
evidence to find that there was no reasonable likelihood that she could correct the conditions of
abuse and/or neglect in the near future and that termination of her parental rights was in the
children’s best interests.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
9, 2020, order is hereby affirmed.
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Affirmed.
ISSUED: December 10, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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