STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: J.L., T.Y., and G.B.
November 22, 2017
EDYTHE NASH GAISER, CLERK
No. 17-0570 (Wood County 13-JA-61, 13-JA-62, & 13-JA-63) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.L., by counsel Berkeley L. Simmons, appeals the Circuit Court of
Wood County’s May 25, 2017, order terminating her parental rights to J.L., T.Y., and G.B.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order.2 The guardian ad litem
(“guardian”), Courtney L. Ahlborn, filed a response on behalf of the children in support of the
circuit court’s order. The father C.B., by counsel Ernest M. Douglass, filed a brief in support of
the circuit court’s order. The father L.Y., by counsel Eric K. Powell, also filed a brief in support
of the circuit court’s order. Petitioner filed two reply briefs. On appeal, petitioner argues that the
circuit court erred in (1) not allowing thirteen-year-old T.Y. to express her wishes; (2) not
returning petitioner’s children to her custody despite the recommendation set forth in the
evaluating psychologist’s parental fitness evaluation; (3) terminating her parental rights when
none of the factors requiring termination set forth in West Virginia Code §49-4-604(b)(7) were
present; (4) making erroneous findings of fact based on the DHHR’s and the guardian’s biased
and unfair treatment of her; (5) not considering that petitioner was the only parent in the
proceedings who sought and obtained employment; and (6) entering its May 25, 2017
dispositional order, which departed from the circuit court’s observations on the bench.3
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).
2
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
3
Petitioner lists thirteen assignments of error in her brief on appeal. However, in the
argument section, petitioner outlines only the five arguments mentioned in this memorandum
(continued . . . )
1
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 June of 2013, the DHHR filed an abuse and neglect petition against petitioner and
J.L.’s father after receiving a referral from the Family Court of Wood County. The DHHR
alleged that the child J.L. had been diagnosed with severe anxiety such that he was prescribed
Prozac, which was believed to be due to his parents’ inability to get along. Petitioner and J.L.’s
father had been litigating domestic relations issues in family court since 2007. In the referral, the
DHHR stated that J.L. and T.Y. were interviewed and their responses indicated that the children
were being influenced by petitioner to make false reports against J.L.’s father. Further, the
DHHR noted that petitioner previously made false reports against J.L.’s father and ultimately
pled guilty to three counts of false reporting in 2012. The DHHR alleged that petitioner abused
and neglected J.L. by falsely accusing his father of abuse in an attempt to alienate the child from
his father. Due to these false allegations, J.L. and his father were separated for a long period of
time, thereby disrupting their bond.4
The circuit court held an adjudicatory hearing in November of 2013, during which
petitioner stipulated that she emotionally neglected J.L. by willfully and wantonly taking action
to alienate the child from his father. The circuit court granted petitioner a post-adjudicatory
improvement period in which she was required to participate in parenting skills and therapy and
undergo a psychological evaluation. Petitioner thereafter underwent a psychological evaluation
in which the psychologist found that petitioner established a pervasive lack of insight during her
persistent efforts to alienate J.L. from his father. Further, the psychologist found that petitioner
consistently placed the child in harm’s way, denied him a relationship with his father, and
ignored the recommendation of professionals involved in her case. J.L. was placed in the custody
of his father throughout petitioner’s improvement period.
decision’s opening paragraph. This Court has previously cautioned parties that “[a]lthough we
liberally construe briefs in determining issues presented for review, issues which are . . .
mentioned only in passing but are not supported with pertinent authority, are not considered on
appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996). We have further
explained that “[a] skeletal ‘argument,’ really nothing more than an assertion, does not preserve a
claim[.]” State Dep’t of Health and Human Res. v. Robert Morris N., 195 W.Va. 759, 765, 466
S.E.2d 827, 833 (1995). See also W.Va. R. App. Proc. 10 (listing requirements for briefs filed
with this Court). As such, we decline to address any of the assignments of error petitioner has
listed that are not addressed in the argument section of her brief.
4
No allegations of abuse and/or neglect involving T.Y. and G.B. were raised in the
petition at that time and they remained in petitioner’s custody.
2
In November of 2014, the circuit court held a review hearing regarding petitioner’s post
adjudicatory improvement period. The circuit court directed the former guardian to submit a
recommended parenting plan. However, issues arose with that guardian such that the proceedings
were delayed until the circuit court appointed a new guardian in November of 2015. Later in
November, petitioner made additional allegations of abuse against J.L.’s father and stated that
J.L. does not sleep well before he returns to his father’s home, wants to remain with petitioner,
and has become “nervous” since living with his father. The circuit court ordered the DHHR to
investigate these issues.
The circuit court held a hearing in February of 2016 to address the allegations made by
petitioner against J.L.’s father. The DHHR stated that it failed to substantiate the allegations
made by petitioner. Petitioner then withdrew her motion for custody of J.L., claimed that she was
a victim of domestic violence at the hand of G.B.’s father, and requested services to address this
issue. At the conclusion of the hearing, the circuit court placed T.Y. and G.B. in the custody of
the DHHR pending further investigation. The DHHR subsequently filed an amended petition
alleging that petitioner continued to make false reports against J.L.’s father in an attempt to
regain custody of the child and alienate him from his father. Additionally, the DHHR alleged that
it conducted an unannounced home visit at petitioner’s home and found it to be in a state of
disarray. Further, G.B.’s father appeared to be living in the home, contrary to petitioner’s prior
claims. The DHHR also alleged that petitioner failed to maintain G.B. in preschool despite court
orders requiring her to do so, and failed to assure that T.Y. attended school. Petitioner also failed
to provide T.Y. with necessary therapy.
In March of 2016, the circuit court held an adjudicatory hearing regarding the amended
petition. Petitioner stipulated to the allegations that she failed to meet the educational needs of
T.Y., failed to maintain G.B. in preschool, deprived G.B. of assistance to meet his developmental
needs, maintained an unsanitary and unfit home for the children during the home visit, and
participated in domestic violence with G.B.’s father in the children’s presence. However, the
DHHR noted that, despite her claims of domestic violence, petitioner had dropped the domestic
violence protective order against G.B.’s father. The circuit court ordered petitioner to participate
in therapy and undergo a parental fitness evaluation.
The circuit court held a review hearing in May of 2016 on petitioner’s motion for an
improvement period. The circuit court heard the testimony of a therapist who provided services
to petitioner in 2014 and petitioner’s former manager from her place of employment. However,
because the report of petitioner’s evaluating psychologist had been submitted less than five days
prior to the hearing, it was continued to allow the parties time to review the new information. A
second review hearing was held in June of 2016. At that time, the guardian expressed concerns
over petitioner’s continued inability to tell the truth, stating that she experienced difficulty in
locating petitioner’s new home. The guardian believed that she was unable to locate petitioner’s
new home because petitioner intentionally gave her the wrong address. The guardian explained
that petitioner had been evicted from her first home in Kanawha County and then allegedly gave
the guardian the incorrect address to her second home. However, petitioner testified that she gave
the guardian the pre-9-1-1 address as listed on the utilities. After taking petitioner’s testimony,
the circuit court continued the hearing once again to allow parties time to review new evidence
submitted.
3
In October of 2016, the circuit court determined that it would hear evidence on both
petitioner’s motion for an improvement period and the DHHR’s motion to terminate petitioner’s
parental rights. Over the course of two dispositional hearings throughout October and December
of 2016, the circuit court heard testimony from a multitude of persons, including petitioner;
petitioner’s evaluating psychologist; a service provider; and the child T.Y.’s therapist. Regarding
the parental fitness evaluation, the record indicated that, unbeknownst to the DHHR, counsel for
petitioner contacted the psychologist to arrange for the evaluation to be performed, despite it
being the DHHR’s responsibility to arrange the evaluation. The psychologist testified that she
informed petitioner’s counsel that she would not perform the evaluation because the DHHR had
not paid her quickly enough in the past. The psychologist testified that she flippantly told
petitioner’s counsel that if he could get the DHHR to issue her a payment, that she would
perform the evaluation. Coincidentally, several days later the psychologist received a substantial
payment from the DHHR for her past services performed. True to her word, the psychologist
performed the evaluation. Having no knowledge of what had transpired, the DHHR attempted to
send the necessary documentation to the psychologist, who refused to review the information,
having already performed the evaluation. The psychologist eventually reviewed one document
the morning of the dispositional hearing, but testified that she had refused to review the other
documentation because the DHHR frequently sent her untimely information and she did not have
time to go back and review everything. The psychologist testified that having the other
documentation would have been helpful, but that, having reviewed the one document that
morning, her recommendation that the children immediately be returned to petitioner’s custody
had not changed.
The circuit court heard further evidence that after the children were removed from her
custody, petitioner moved to Kanawha County in order to pursue a job, from which she had
already been fired at the time of the dispositional hearing. After petitioner’s move, she failed to
participate fully in visitation and services. A service provider testified that petitioner missed
several visits with her children, who remained in Wood County. According to testimonial
evidence, both the attended and missed visits had a negative effect on the children. A DHHR
worker testified that T.Y. became disturbed by petitioner’s inconsistent visitation schedule and
expressed that she did not know why petitioner bothered to attend visits if she could not be
consistent. Further, G.B.’s father testified that when petitioner did visit, the children exhibited
concerning behaviors in the days following the visit. Regarding other missed services, the circuit
court heard evidence that after moving to Kanawha County, petitioner did not seek out therapy or
counseling for four to five months. The circuit court also heard evidence that petitioner made
several inconsistent statements regarding her living arrangements, her relationship with G.B.’s
father, and her discharge from her employment. Finally, petitioner requested that T.Y., then
thirteen years old, be allowed to give her opinion concerning disposition. However, T.Y.’s
therapist subsequently authored a statement recommending that T.Y. not be consulted, as
rendering such an opinion on whether she should return to her mother’s care would be
detrimental to T.Y. After hearing all the evidence, the circuit court determined that the
psychologist’s parental fitness evaluation was so vastly inconsistent with the evidence that its
credibility was very limited. The circuit court found that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and that termination was necessary for the
4
children’s welfare. As such, the circuit court terminated petitioner’s parental rights.5 It is from
this May 25, 2017, dispositional order that petitioner appeals.
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 first argues that the circuit court erred in not considering thirteen
year-old T.Y.’s wishes and, thus, was not in compliance with Interest of Jessica G., 226 W.Va.
17, 697 S.E.2d 53 (2010). In that case, this Court held that the circuit court erred in terminating
the father’s parental rights when it failed to explain why the thirteen-year-old child was not of
“an age of discretion” or why the wishes of the child were not considered when she expressed
her desire that her father’s parental rights not be terminated and when there was evidence of a
strong bond. However, we find petitioner’s argument to be without merit. Pursuant to West
Virginia Code § 49-4-604(b)(6)(C), the circuit court “shall give consideration to the wishes of a
child fourteen years of age or older or otherwise of an age of discretion as determined by the
court regarding the permanent termination of parental rights.” T.Y. was thirteen years old at the
time of the dispositional hearing. While petitioner likens the situation to that of Jessica G., the
record is clear that the facts are quite distinguishable. First, unlike in Jessica G., there is nothing
in the record suggesting that T.Y. ever expressed that she did not want petitioner’s parental rights
terminated. Second, there was no evidence in the record that suggested T.Y. had a strong bond
with petitioner. In fact, the circuit court heard evidence that T.Y. stated that she did not
understand why petitioner bothered to attend visits if she could not be consistent. Finally, unlike
5
J.L. is in the custody of his non-abusing father with a permanency plan to remain there.
T.Y. is currently in a foster home, as her non-abusing father remains unable to care for her at this
time. The permanency plan for T.Y. is to be reunified with her father if possible. The concurrent
permanency plan for T.Y. is adoption by her foster family. G.B. was placed in the custody of his
father after successful completion of an improvement period and dismissal of the petition. The
permanency plan for G.B. is to remain with his father.
5
in the present case, the circuit court in Jessica G. expressed particular concern over the lack of
any evidence or testimony of a licensed mental health care provider as to the possible
psychological consequences of terminating the parental rights. In the present case, the circuit
court stated that it would wait to render its decision until after a statement was submitted from
T.Y.’s therapist as to whether T.Y. should be allowed to testify. Thereafter, T.Y.’s therapist
submitted a statement advising against allowing T.Y. to express her opinion to the circuit court.
Specifically, the therapist stated that T.Y. was under enough pressure regarding everyday
stressors and managing herself. The therapist stated that T.Y.’s life should not be complicated by
giving her the power to decide whether petitioner’s parental rights are terminated, as she would
feel guilty or responsible for whatever happened. As such, we find that the circuit court did not
err in denying petitioner’s request to hear T.Y.’s wishes.
Petitioner next argues that the DHHR and the guardian were biased and did not treat
petitioner objectively or fairly, resulting in distorted and untrue findings. According to petitioner,
several findings of fact are wholly erroneous. Specifically, petitioner asserts that the circuit court
erred by finding that the evaluating psychologist attributed her payment from the DHHR to
petitioner’s counsel as it suggests the psychologist’s report was in petitioner’s favor because her
counsel took steps to arrange the evaluation. Further, petitioner asserts that the circuit court’s
findings that (1) petitioner made additional allegations of abuse against J.L.’s father and that (2)
she stipulated that there was domestic strife between herself and G.B.’s father and yet, after
filing a domestic violence protective order, failed to offer evidence in support of that allegation,
are misleading because they inaccurately suggest that petitioner brought unsubstantiated
allegations against J.L.’s father a second time during the proceedings and failed to offer evidence
to support her claims of domestic violence by G.B.’s father. We have previously held that “[a]
reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely
situated to make such determinations and this Court is not in a position to, and will not, second
guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531,
538 (1997). Here, petitioner’s only argument consists of self-serving statements of how the
circuit court’s findings of fact portray the circumstances in the underlying proceedings
differently than she remembers them. As such, we decline to disturb the circuit court’s
assessment of witness credibility and find that petitioner is entitled to no relief in this regard.
Petitioner next argues that none of the factors requiring termination of parental rights as
set forth in West Virginia Code § 49-4-604(b)(7) are present in this case. However, petitioner
misstates the law as the list of factors provided in West Virginia Code § 49-4-604(b)(7) are not
requirements for termination. Rather, this section provides that if the circuit court determines
certain factors are present, “the [DHHR] is not required to make reasonable efforts to preserve
the family . . . .” While petitioner is correct that none of the factors in this list are present, this
statute does not support her argument against termination of her parental rights. Rather, it
establishes that the DHHR did have to make reasonable efforts to preserve the family in this
case. There is nothing in the record that suggests that the DHHR failed to make reasonable
efforts as petitioner was provided with supervised visitation, counseling, and a psychological
evaluation, among other services, over the course of nearly four years.
Petitioner also argues that the circuit court erred in terminating her parental rights when
less-restrictive alternatives were available. However, pursuant to West Virginia Code § 49-4
604(b)(6), circuit courts are directed to terminate parental rights upon finding that there is no
6
reasonable likelihood that the conditions of abuse and neglect could be corrected and that
termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) sets
forth that a situation in which there is no reasonable likelihood that the conditions of abuse or
neglect can be substantially corrected includes one in which “[t]he abusing parent . . . ha[s] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]” We have also held that “[t]ermination . . . may be employed without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .
that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996).
Here, it is clear that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect. The original petition was filed in 2013 due to petitioner’s false
allegations of abuse by J.L.’s father. Petitioner’s deceitful behavior continued throughout the
underlying proceedings and her second set of allegations against J.L.’s father ultimately led to
the filing of the amended petition. Although petitioner subsequently withdrew the allegations,
her behavior still demonstrates that she showed blatant disregard as to how her deceitful behavior
caused harm to the children. Further, petitioner was ordered to participate in therapy but failed to
follow through with these services after she moved to Kanawha County. The record indicates
that petitioner also missed several of her supervised visits with the children and was evicted from
two homes during the course of just a few months. As such, we find that the circuit court did not
err in terminating petitioner’s parental rights upon findings that there was no likelihood that
petitioner could correct the conditions of abuse and that termination was necessary for the
children’s welfare.
In petitioner’s remaining assignments of error she addresses in her argument, she argues
that the evaluating psychologist recommended that the children be placed with her; that she was
the only parent in the proceedings to seek and obtain employment; and that the May 25, 2017,
dispositional order departed from the circuit court’s observations on the bench. However, these
arguments are either one-sentence assertions or irrelevant self-serving statements. Petitioner
failed to cite to any legal authority in support of her arguments and failed to cite to the appendix
record. These failures are in direct contradiction of this Court’s Rules of Appellate Procedure
and specific directions issued by administrative order.
Specifically, Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure 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.
(emphasis added). Additionally, in an Administrative Order entered December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate Procedure, then-Chief Justice Menis E.
Ketchum specifically noted in paragraph two 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.
Accordingly, this Court will not address these three assignments of error on appeal.
7
For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 25, 2017, order is hereby affirmed.
Affirmed.
ISSUED: November 22, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
8