                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In re: A.C. and O.C.
                                                                                 April 12, 2016
                                                                                 RORY L. PERRY II, CLERK
No. 15-0475 (Clay County 13-JA-44 & 13-JA-45)                                  SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Father W.C., by counsel Wayne King, appeals the Circuit Court of Clay
County’s April 23, 2015, order terminating his custodial rights to seven-year-old A.C. and nine­
year-old O.C. 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, Michael W. Absury Jr., filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in (1) finding that
he physically abused one of the children, (2) terminating his custodial rights to the children, and
(3) refusing to recognize that its finding of physical abuse was incorrect.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.

       On July 26, 2013, the DHHR filed an abuse and neglect petition against petitioner based
on allegations that he struck O.C. multiple times in the head and body, which resulted in facial
bruising, on July 25, 2013. At a preliminary hearing on that petition, the circuit court heard
testimony from an eye-witness who drove past petitioner’s residence in Clay County, West
Virginia, on July 25, 2013, when the alleged abuse occurred. The eye-witness described the
scene as follows:

       I saw a grown man beating a child. Not smacking him, beating him. I blew my
       horn[,] and he did not stop. . . . I kept blowing and blowing my horn. He quit. I
       don’t know if it was because of my horn, but the man went back into the trailer
       and he, the little boy[,] was crying and following him and he turned—the man



       1
         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 ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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       turned around and with both hands up, pushed the little boy in the face, knocking
       him back down to the ground on his bottom.2

Thereafter, a DHHR worker testified that she saw redness and bruises on O.C.’s face on July 25,
2013, and that O.C. has autism. The DHHR worker further explained that the children’s parents
were homeless at the time of the hearing. While petitioner acknowledged that an incident
occurred that could have been mistaken for abuse, he denied “beating” or otherwise intentionally
harming his son. Petitioner maintained that he merely attempted to restrain his son, who was
having a “fit.” Petitioner further testified that he employed techniques he acquired in a program
designed to teach parents of autistic children how to restrain them properly. At the conclusion of
the hearing, the circuit court ordered that the children continue in the temporary custody of the
DHHR pending an adjudicatory hearing.

       In August of 2013, the circuit court held an adjudicatory hearing. At the outset of that
hearing, without objection from any party, the circuit court took judicial notice of the evidence
previously presented. Thereafter, petitioner testified and again denied “beating” O.C. Petitioner
suggested that the injuries to O.C. occurred as the result of innocent means, such as an accident
during playtime with other children or a skin condition from which he suffered. Based on the
evidence presented, the circuit court found that petitioner physically abused O.C. and adjudicated
him as an abusing parent.

        In September of 2013, the circuit court held a dispositional hearing. At that hearing,
based on the representations of the parties, the circuit court granted petitioner a six-month post­
adjudicatory improvement period. To complete that improvement period, petitioner was ordered
to find suitable housing and to comply with all services, which included parenting and adult life
skills classes, domestic violence counseling, anger management classes, and random drug and
alcohol screenings. Petitioner was also permitted weekly visits with the children.

        In February of 2014, petitioner’s improvement period was extended, and he received a
post-dispositional improvement period in June of 2014. During the duration of his improvement
periods, petitioner moved from Clay County, West Virginia, to Charleston, West Virginia, and
made known his intention to move to either the State of Texas or the State of Kansas.3

        In February of 2015, the circuit court held a final dispositional hearing. Petitioner was not
present at this hearing, but his counsel moved to continue the matter on the basis that petitioner
was in the State of New York receiving medical care. Based on petitioner’s inability to attend the
hearing, the circuit court granted the continuance.



       2
         While petitioner argues in his brief to this Court that the eye-witness was “fifty (50)
yards away” from petitioner and the child, he fails to support this stated distance with a specific
citation to the record on appeal. Instead, petitioner supports this distance with a citation to the
entire preliminary hearing (“See Appendix Pgs 19-80”). We have reviewed the record on appeal,
and it does not appear from the record that the eye-witness stated her distance from the incident.
       3
           It is unclear from the record on appeal why petitioner intended to move to another state.
                                                   2


        In March of 2015, the circuit court held the continued final dispositional hearing.
Petitioner again failed to appear. The DHHR worker testified that petitioner informed her that he
had moved to the State of New Jersey and would not be returning “for quite some time.” The
DHHR worker also explained that, although petitioner had initially completed some services, he
“did not want to focus on the material” in his parenting and adult life skills classes and
discontinued services when he moved out-of-state.

        Notably, petitioner had not seen his children since December of 2014, and had only
maintained contact with them by telephone. At the conclusion of the hearing, the circuit court
found no reasonable alternative to termination of petitioner’s custodial rights to the children. The
circuit court further ordered that petitioner would receive post-termination visitation once per
month, if requested by petitioner with adequate notice. This appeal followed.

       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 assigns error to the circuit court’s finding that he physically
abused then six-year-old O.C. While petitioner argues that the DHHR worker’s testimony was
insufficient to substantiate the allegations against him, he wholly ignores the eye-witness
testimony that described in detail the “beating” O.C. received at petitioner’s hands. As noted in
our standard of review above, we “must affirm a finding if the circuit court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Id. Further, we have long held
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.”). In this case, the circuit court
heard from an independent eye-witness who testified that petitioner “beat” then six-year-old O.C.
about the face and body with his hands and pushed the child to the ground. The DHHR worker

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then corroborated that account by her testimony that she witnessed redness and bruising on
O.C.’s face on the day of the incident. The evidence was clearly sufficient to establish a finding
of abuse, and the circuit court was uniquely situated to determine which version of events was
credible. Based on the record presented, we find no merit to petitioner’s first assignment of
error.4

        In his second assignment of error, petitioner argues that the circuit court erred in
terminating his custodial rights to the children given that he complied with the terms of his
improvement periods prior to his relocation to New Jersey. Pursuant to West Virginia Code § 49­
6-5(a)(6), circuit courts are directed to terminate parental rights upon findings that there is no
reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in
the near future and when necessary for the child’s welfare. West Virginia Code § 49-6-5(b)
provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected exists when “[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, the record on appeal does not support petitioner’s factual contention that he
substantially complied with the terms of his improvement periods or otherwise demonstrated a
reasonable likelihood that he could substantially correct the conditions of neglect in the near
future. To the contrary, it is clear from the record before us that petitioner failed to comply with
the terms of his improvement period throughout the proceedings below. As reflected in the
DHHR worker’s testimony at the final dispositional hearing, petitioner participated in services in

       4
         Petitioner’s first and third assignments of error are substantially related. In his third
assignment of error, petitioner argues that the circuit court should have recognized that its
finding regarding the physical abuse was incorrect due to the child’s autism. While we generally
discuss related issues together, we find that petitioner failed to cite any legal authority in support
of his third assignment of error. 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[.]” Additionally,
in an Administrative Order entered on December 10, 2012, Re: Filings That Do Not Comply
With the Rules of Appellate Procedure, 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. Therefore, as petitioner
failed to properly develop the issue for appellate review, we need not address petitioner’s third
assignment of error. As we have already determined, following a thorough review of the record
on appeal, we note that the circuit court properly considered the evidence presented in arriving at
its finding of physical abuse. We again note that the circuit court was uniquely situated to
determine the credibility of petitioner’s claim that he was properly physically restraining O.C.
See In re Emily, 208 W.Va. at 339, 540 S.E.2d at 556 (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., 201 W.Va. at 388, 497 S.E.2d at
538. As such, we find that the circuit court committed no error in this regard.
                                                  4


the beginning, but failed to fully comply with services while he resided in West Virginia; then,
he stopped participating entirely when he relocated to New Jersey. Further, according to the
testimony at the final hearing, petitioner “did not want to focus on the material” in his parenting
and adult life skills classes.

        The record on appeal also shows that, when petitioner moved to Charleston, West
Virginia, in 2014 for employment, petitioner quit providing samples for random drug and alcohol
screenings because he “did not feel that he needed to participate in drug screens because he was
an employee at the jail[.]” Importantly, by the time of the final hearing, he had not visited with
his children in person in several months. We have held that “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 part, In re B.H., 233 W .Va. 57, 754 S.E.2d 743 (2014). Based on
petitioner’s failure to maintain compliance with the terms of his improvement periods and the
violent nature of the underlying incident, the circuit court properly found that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future and termination was in the children’s best interests. As such, we find no error in
the circuit court’s termination of petitioner’s custodial rights to the children.

        For the foregoing reasons, the circuit court’s April 23, 2015, order terminating
petitioner’s parental rights to the children is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 12, 2016


CONCURRED IN BY:

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

VOLUNTARILY DISQUALIFIED:

Justice Brent D. Benjamin




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