                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



M.C.,                                                                                FILED
                                                                                   March 14, 2014
Respondent Below, Petitioner                                                   RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

vs) No. 13-0361 (Mingo County 07-D-147)                                          OF WEST VIRGINIA




R.C.,

Petitioner Below, Respondent


                               MEMORANDUM DECISION

         Petitioner M.C.,1 appearing pro se, appeals the March 15, 2013 order of the Circuit Court
of Mingo County that denied her appeal from a November 2, 2012 order of the Family Court of
Mingo County that modified the parties’ parenting plan to provide that petitioner would have no
contact with the children. Respondent R.C., by counsel Jane Moran, filed a response. Petitioner
filed a reply.

        The 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.

         The parties are divorced and have two children together, ages 8 and 10. Pursuant to an
April 26, 2010, agreed order, respondent had custody of the children and petitioner had limited
visitation. Pertinent to this appeal, the agreed order directed petitioner to (1) ensure no other
individual, including family members, would be present during visitation; (2) ensure no person
with a criminal and/or drug history was present during visitation; (3) ensure a specific individual,
B.E.M., had no contact with the children;2 and (4) refrain from any harassing conduct directed
toward respondent or his family while attending sporting events in which the children were
participants. The agreed order subjected both parties to random drug testing. The agreed order
further provided that if the family court later found that “[petitioner] has violated any provision or

       1
          Because this is a domestic relations case, we protect the identities of those involved. See
State ex rel. West Virginia Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356
S.E.2d 181, 182 n.1 (1987).
       2
        Respondent states that B.E.M. has a criminal and a drug history. Petitioner denies that
B.E.M. has a drug history, but also asserts that Mingo County Child Protective Services had
informed her that “none of [B.E.M.’s] charges should prevent him from being around children.”
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condition of this Order, all visitation by [petitioner] shall terminate.” The agreed order was signed
by the family court judge, respondent’s counsel, and petitioner’s counsel.

         Subsequently, petitioner filed a petition of modification seeking increased visitation with
the children, while respondent petitioned the family court to find petitioner in contempt of its
previous order. Following a hearing, the family court found that petitioner (a) admitted allowing
her family members to be present during her visitation with the children on July 22, 2010, but
“alleged that said contact was unavoidable”; (b) neither denied nor confirmed that she permitted
the children to have contact with B.E.M.; (c) acknowledged that she failed to be courteous to her
son’s coach and also engaged in a confrontation with respondent at the son’s sporting event; and
(d) tested positive “and beyond therapeutic level[s] for Barbiturates and Opiates and also tested
positive for Cannabinoids on August 23, 2012.” In light of petitioner’s positive drug test, the
family court declined to interview the parties’ children in camera after previously considering
conducting such interviews. The family court also noted that the custody evaluator in the case
“testified that he had concerns about [petitioner’s] intention or willingness to comply with the
directives of this Court at any time in the future.” By repeatedly failing to comply with court
directives, the family court concluded that “[petitioner] has failed to protect the infant children.”

        The family court found petitioner in contempt for allowing her family members to be
present during her visitation and for permitting the children to have contact with B.E.M. The
family court concluded that there had been a substantial change in circumstances and modified the
parties’ parenting plan to provide that petitioner would have no contact with the children. The
family court ordered that prior to petitioner requesting to have visitation restored, petitioner must
complete an in-patient substance abuse program and must complete parenting classes similar to
those offered in child abuse and neglect cases.

        Petitioner appealed the family court’s November 2, 2012 order, that modified the parties’
parenting plan to the circuit court alleging ten assignments of error. The circuit court addressed all
ten grounds and denied petitioner’s appeal noting that a family court’s order is reviewed only for
an abuse of discretion and that the findings supporting the order are reviewed only for clear error.
Relevant to the instant appeal, the circuit court (1) determined that although petitioner averred that
B.E.M having no contact with her children was not part of the family court’s oral pronouncements
at the hearing that preceded the April 26, 2010 agreed order, the agreed order constituted a valid
order because it was “signed by counsel for all parties”; (2) found that while petitioner was the
only party directed to behave herself during the children’s sporting events, petitioner could have
informed the family court of any alleged goading by respondent that caused the confrontation at
her son’s game; (3) noted the notation by the clerk of the family court on the urine drug screen that
no proof of prescriptions was provided by petitioner; (4) found that the family court did not ignore
that respondent was not without fault in the parties’ confrontation at their son’s game and had been
less than supportive of petitioner being able to maintain a relationship with the children
(discussing the family court’s findings regarding the same); (5) determined that while petitioner
alleged that the custody evaluator had a conflict of interest, petitioner never raised the issue with
the family court even though the evaluator had been appointed in 2010; and (6) noted the best
interests of the children was paramount and that respondent provided the children with stability.
        Petitioner appeals the circuit court’s March 15, 2013 order that denied her appeal from the
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family court’s November 2, 2012 order. We review a circuit court’s denial of the appeal from a
family court order under the following standard:

               In reviewing a final order entered by a circuit court judge upon a
               review of, or upon a refusal to review, a final order of a family court
               judge, we review the findings of fact made by the family court judge
               under the clearly erroneous standard, and the application of law to
               the facts under an abuse of discretion standard. We review questions
               of law de novo.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

         On appeal, petitioner challenges the family court’s findings that she (a) allowed her family
to be present during her visitation with the children on July 22, 2010, but “alleged that said contact
was unavoidable”; (b) neither denied nor confirmed that she permitted the children to have contact
with B.E.M.; (c) acknowledged that she failed to be courteous to her son’s coach and also engaged
in a confrontation with respondent at the son’s sporting event; and (d) tested positive “and beyond
therapeutic level[s] for Barbiturates and Opiates and also tested positive for Cannabinoids on
August 23, 2012.” Respondent argues that the family court’s findings and order, and the circuit
court’s affirmation thereof, were not erroneous because the family court’s decision was grounded
in fact.

        This Court notes that the family court considered petitioner’s allegation that the contact
with her family was unavoidable, but was not swayed by the contention. “An appellate court may
not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task
of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995).
Furthermore, the family court speaks through its orders, and the April 26, 2010, agreed order
forbade petitioner from allowing the children to have contact with B.E.M. This Court agrees with
the circuit court that the agreed order constituted a valid, enforceable order.3 The Court further
agrees that the family court considered that respondent was also at fault in the parties’
confrontation, but properly found that the children’s best interests necessitated the termination of
all contact with petitioner. Finally, petitioner alleges that she was taking only prescribed drugs and
that the final drug screen showed that she was not positive for Cannabinoids. The Court has
reviewed the urine drug screen petitioner attached to her reply and finds that it does not support
petitioner’s position.4 Therefore, this Court concludes that the family court did not abuse its
       3
         Petitioner contends whether the prohibition against the children having contact with
B.E.M. was properly a part of the written order amounted to a “he said/she said situation” because
there is no recording of the relevant hearing. However, in such a situation, this Court gives
deference to the family court’s findings. See State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d
163, 175 n. 9 (1995).
       4
          Petitioner states that her drug test and the initial results were on August 23, 2012, but that
a second analysis was later performed. On the urine drug screen dated September 6, 2012,
petitioner was “confirmed positive” for Nordiazepam, Oxazepam, Butalbital, Morphine, and
                                                    3

discretion in modifying the parties’ parenting plan to where petitioner would have no contact with
the children.

       For the foregoing reasons, we affirm the March 15, 2013 order of the Circuit Court of
Mingo County denying petitioner’s appeal from the November 2, 2012 order of the Family Court
of Mingo County.

                                                                                        Affirmed.

ISSUED: March 14, 2014

CONCURRED IN BY:

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




Delta-9-Carboxy-THC which is measured to test for Cannabinoids.
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