                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: J.M.
                                                                                   FILED
                                                                              November 21, 2016
Nos. 16-0511 and 16-0745 (Ohio County 16-CJA-9)                                   RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


                               MEMORANDUM DECISION
        In these consolidated cases, petitioner Father J.F., by counsel Brent A. Clyburn, appeals
the Circuit Court of Ohio County’s April 27, 2016, and July 8, 2016, orders adjudicating
petitioner as an abusing parent1 to seven-year-old J.M.2 The West Virginia Department of Health
and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Joseph J. Moses, filed a response also
in support of the circuit court’s order and a supplemental appendix.3 Petitioner filed a reply. On
appeal, petitioner argues that there was insufficient evidence presented at the adjudicatory
hearings to support the circuit court’s findings that he neglected the child.


       1
         Petitioner refers to the circuit court’s finding that he was a “neglectful parent.” While the
circuit court’s finding was based on neglect, West Virginia Code § 49-1-201 defines “abusing
parent” as “a parent . . . whose conduct has been adjudicated by the court to constitute child
abuse or neglect as alleged in the petition charging child abuse or neglect.” (Emphasis added.)
As such, we refer to petitioner as an “abusing parent” throughout this memorandum decision.
       2
         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). We also note that petitioner filed two related appeals in this
matter because the circuit court entered two adjudicatory orders addressing the same child. As
these appeals stemmed from the same proceedings and involved the same parties and issues, this
Court consolidated them by order entered on August 17, 2016.
       3
         Both petitioner’s brief and the guardian’s response failed to include a section regarding
the current status of the child, plans for continued placement of the child, and status of the
parental rights of the child’s parents. This information is of the utmost importance to this Court
in these proceedings. We refer petitioner’s counsel and the guardian to Rule 11(i) of the West
Virginia Rules of Appellate Procedure, which provides that briefs in abuse and neglect appeals
“filed by the parties (including the guardian ad litem) must contain a section . . . setting forth the
current status of the minor children and any plans for permanent placement, and the current
status of the parental rights of all the children’s parents.” (Emphasis added.) While we decline to
employ its use in this matter, we caution petitioner’s counsel and the guardian that Rule 10(j)
provides for the imposition of sanctions where a party’s brief does not comport with the Rules.
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        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 January of 2016, the DHHR filed an abuse and neglect petition against petitioner and
the child’s mother.4 In the petition, the DHHR alleged that the child’s mother abused drugs in the
child’s presence and that petitioner had failed to provide for the child as evidenced by a child
support arrearage. The DHHR claimed that it attempted to locate and contact petitioner when it
removed the child from his mother, but petitioner failed to return the DHHR’s messages. The
DHHR further alleged that petitioner had an extensive criminal history, including at least three
arrests for driving under the influence (“DUI”) (one of which resulted in a death). In February of
2016, the circuit court held a preliminary hearing. The circuit court granted temporary custody of
the child to the DHHR pending further proceedings. Petitioner did not appear in person at the
hearing, but he was represented by counsel. Reportedly, petitioner arrived at the courthouse after
the hearing had ended.

        In March of 2016, the DHHR filed an amended petition against petitioner. In that
amended petition, in addition to the previously stated allegations, the DHHR alleged that
petitioner had a long-term alcohol addiction that affected his parenting and that he continued to
consume alcohol. The DHHR also claimed that petitioner failed to acknowledge his alcohol
abuse as a problem, despite multiple serious automobile accidents and arrests allegedly related to
his alcohol use. The DHHR specifically set forth in the amended petition that

       [the child’s] physical or mental health is harmed or threatened by [petitioner’s]
       present refusal, failure or inability to supply the [child] with necessary food,
       clothing, shelter, supervision, medical care or education when such refusal, failure
       or inability is not due primarily to a lack of financial means on [petitioner’s] part.

       . . . [the child is] presently without necessary food, clothing, shelter, medical care,
       education or supervision because of the disappearance or absence of the child’s
       parent or custodian.

       . . . [petitioner] lack[s] parenting skills, parenting knowledge or motivation in that
       [he] will not and do[es] not provide physical care, protection, supervision and
       psychological support appropriate to the [child’s] age[] and stage[] of
       development.



       4
         In mid-November of 2016, the guardian filed an updated statement with this Court,
pursuant to Rule 11(i) of the West Virginia Rules of Appellate Procedure, regarding the current
status of the child’s mother. In that updated 11(i) statement, the guardian claimed that the child’s
mother passed away in early November of 2016 reportedly following a relapse into drug and
alcohol use.
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         In April of 2016, the circuit court held an adjudicatory hearing on the amended petition.
At the hearing, petitioner testified that he had a court-ordered custody arrangement whereby he
got the child several weekends per month. He claimed that he possibly informed the family court
of the mother’s drug use in approximately 2013, but he could not definitely recall. Petitioner
testified that alcohol had been a problem for him in the past, resulting in multiple DUIs over the
course of many years and an ATV accident in 2013 that caused him substantial physical harm;
that he continued to drink alcohol, but that his current alcohol use was minimal and that he did
not drink around the child; that he had not sought alcohol treatment; and that he knew the child’s
mother abused drugs, but he did not take any legal action to remove the child from her care,
custody, and control. The DHHR worker testified at that hearing that petitioner “is in [child
support] arrearages due to his alcoholism getting him into another ATV accident, which caused
him not to be able to provide for his child. He was also allowing [the child] to go with his
mother, which he was aware of her drug and alcohol history.” Petitioner’s child support
arrearage was said to be more than $4,000. The DHHR worker also stated that petitioner did not
produce any court pleadings or orders demonstrating that he attempted to remove the child from
the mother’s home to protect the child from exposure to drugs. By order entered on April 27,
2016, the circuit court found that petitioner had neglected the child due to the continued,
untreated alcohol abuse and for allowing the child to be exposed to his mother’s drug use.
Petitioner appealed the circuit court’s April 27, 2016, order to this Court (W.Va. Supreme Court
Case No. 16-0511), and his appeal was perfected on July 5, 2016.

        In June of 2016, the DHHR filed a second amended petition against petitioner. In the
second amended petition, in addition to the prior allegations, the DHHR alleged that petitioner
was arrested on May 23, 2016, for driving on revoked license for DUI, fleeing, and reckless
driving. The DHHR argued that petitioner’s arrest in May of 2016, and potential incarceration
for the same prevented him from providing for the child’s emotional, physical, and financial
needs.

        Later that month, the circuit court held an adjudicatory hearing on the second amended
petition. At the hearing, a DHHR worker and an Ohio County Sheriff’s Deputy testified as to the
allegations in the second amended petition. The DHHR worker also testified that petitioner
rejected a case plan with terms and conditions for a potential improvement period because
petitioner did not believe that he had neglected the child. Instead, petitioner informed the DHHR
worker and the multidisciplinary team (“MDT”) that he wished to pursue his appeal of the circuit
court’s finding of neglect. The DHHR worker also stated that at no time had petitioner ever lived
with, or provided for, the child on a regular basis. By order entered on July 8, 2016, the circuit
court found that petitioner had neglected the child based on his current criminal behavior, his
“pattern of criminal and reckless behavior[,] and [his] continued refusal to acknowledge his
alcohol consumption as an issue that need treatment[.]” Petitioner appealed the circuit court’s
July 8, 2016, order to this Court (W.Va. Supreme Court Case No. 16-0745), and his appeal was
perfected on September 6, 2016. Petitioner’s appeals were consolidated as noted above.

       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

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       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). Further, our case law provides
that “in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating 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.”).

       On appeal, petitioner argues that the circuit court erred in its adjudicatory orders by
finding in both instances that he neglected the child. Petitioner asserts that the evidence
presented at the adjudicatory hearings was insufficient to support findings of neglect. West
Virginia Code § 49-1-201 defines a “neglected child” as a child “[w]hose physical or mental
health is harmed or threatened by a present refusal, failure or inability of the child’s parent,
guardian or custodian to supply the child with necessary food, clothing, shelter, supervision,
medical care or education” not based solely on the parent’s lack of financial means.

        In this case, as to the first adjudication in April of 2016, the DHHR alleged that petitioner
threatened harm to the child by his prior and current alcohol abuse; his pattern of
criminal/reckless behavior as evidenced by his extensive alcohol-related arrests/incidents from
approximately 2000 to 2014; his failure to pay child support or otherwise provide for the child;
and his failure to supply the child with food, clothing, shelter, supervision, medical care, or
education. At the first adjudicatory hearing, petitioner admitted that he knew the child’s mother
abused drugs while the child was in her custody, and there is no indication in the record that he
took any action to protect his child from that exposure. Petitioner’s claim that he may have
informed a family court in 2013 does not preclude a finding by the circuit court in 2016 that he
refused to protect his seven-year-old child from further exposure to drug activity. Moreover,
petitioner admitted that he was employed, yet he provided no reasonable explanation for failing
to provide child support resulting in an arrearage of more than $4,000. At the second
adjudicatory hearing, the DHHR again presented evidence of petitioner’s alcohol use and failure
to provide for the child as alleged in its second amended petition. Additionally, the DHHR
presented evidence that petitioner was arrested for multiple alleged criminal acts in May of 2016
that would potentially result in his incarceration.



                                                 4


        Given the clear and convincing evidence of those grave concerns and petitioner’s
dangerous history with, and continued use of, alcohol, we find no error in the circuit court’s
orders regarding adjudication. Petitioner refused to protect or properly supervise his child
knowing that the child’s mother exposed him to drug use. There was simply no evidence that
petitioner sought to modify his parenting arrangement with the mother for the purpose of
removing the child from that environment. While petitioner claimed that he informed a family
court of the mother’s drug use years before the petition’s filing, he provided no evidentiary
support for such a claim beyond his self-serving testimony. The circuit court was within its
discretion to discount that testimony and credit the DHHR worker. Further, petitioner failed to
provide for the child, as evidenced by the substantial child support arrearage. Therefore, we find
adequate evidentiary support for the finding that petitioner’s failures created the threat of harm to
the child’s mental and physical health. We further find no evidentiary support for petitioner’s
claim on appeal (without citation to the record) that his child support arrearages and other
neglect stem solely from his lack of financial means. Petitioner testified that he was employed,
and he provided no evidence of financial hardship as the reason for his failures to seek custody
of the child or pay child support. Simply because a child support arrearage exists does not prove
that a parent’s failure to pay is due solely to financial hardship. Based on our review of the
record on appeal, the parties’ arguments, and pertinent legal authority, the circuit court
committed no clear error in finding that circumstances of this case meet the statutory definition
of a “neglected child.”

       For the foregoing reasons, we find no error in the circuit court’s April 27, 2016, and July
8, 2016, orders, and we hereby affirm the same.


                                                                                          Affirmed.

ISSUED: November 21, 2016


CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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