1



### I N THE 

### I NTERMEDIATE 

### C OURT OF 

### A PPEALS OF 

### W EST 

### V IRGINIA

CORINNE Z.

, Respondent Below, Petitioner

v.) No. 23

- ICA

- 329 ( Fam. Ct. Brooke C nt y . No. FC

- 05

- 2019

- D

- 27 )

TYLER M.

, Petitioner B elow , Respondent

MEMORANDUM DECISION

Petitioner Corinne Z. 1 (“Mother”) appeals the Family Court of Brooke County’s June 13, 2023, order denying her petition for the modification of custody. The family court held that Mother failed to comply with its previous orders and that no substantial change

in circumstances ha d occurred

. Respondent Tyler M. (“Father”) filed a response in support of the family court’s decision. 2 Mother filed a timely reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51

- 11

- 4 (2022). After considering the part ies’ arguments, the record on appeal, and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the family court ’s order is appropriate

under Rule 21 of the Rules o f Appellate Procedure.

The parties , who were never married, are the parents of one child, E.J.M. The e vents leading to this appeal began o n November 9, 2018, when Father filed a petition for a Domestic Violence Protective Order (“DVPO”) against Mother. The family court granted the petition and as a result, Mother was granted supervised visitation with E.J.M three days each week for four hours per visit

. The family court also ordered both parties to undergo a drug and alcohol evaluation and to submit to r andom drug screenings.

1 To protect the confidentiality of the juvenile involved in this case, we refer to the parties’ last name by the first initial. See

, e.g. , W. Va. R. App. P. 40(e); State v. Edward

Charles L. , 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

2 Corin ne Z. is self

- represented. Tyler M. is represented by Elgine Heceta Mc A rdle, Esq. 

### FILED February 27, 2024

C. CASEY FORBES , CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA2

On February 26, 2019, Father filed a petition for the allocation of custodial responsibility. The parties reached an agreement prior to the hearing, which was scheduled for August 26, 2019. O n September 13, 2019, the family court e ntered its Final Order Adopting Joint Parenting Agreement which awarded Father primary custody . The agreement also directed that Mother would continue to have supervised visitation through

a local visitation center

, would continue to submit to random drug screens
, could call the child once daily, and was not permitted to have visits with the child further than fifty miles

away.

Thereafter, Mother canceled four visits with less than twenty

- four hours ’ notice to

the visitation center between December 31, 2019, and January 28, 2020 , which resulted in

the visitation center terminating her access to visits

. Also, the consistency of Mother’s daily phone calls steadily decreased each year b etween 2020 and 2022.

Mother filed a petition for modification on Sept ember 29, 2022, requesting equal custody. Mother increased the frequency of her phone calls just prior to filing her petition and maintained that frequency for a brief period of time after her petition was filed. O n December 29, 2022, the parties attended court

- ordered mediation but failed to reach an agreement. There after , a final modification hearing was scheduled for March 14, 2023. At that hearing, Mother testified that: (1) she had moved over 250 miles away, to Denver,

P ennsylvania ; (2) she was unemplo yed and had not held a full

- time job for more than two

months at a time ; (3) she was “trying to find herself” ; (4) she was hospitalized for anorexia

for two weeks ; and (5) she stopped complying with the family court’s order for random drug testing.

The f amily court entered its order on June 13, 2023, denying Mother’s request to modify the parenting plan. The family court found that Mother had failed to comply with its prior orders of supervised visitation and random drug screens and had failed to establis h

that a substantial change in circumstances had occurred. Additionally, the family court found that “the limiting factors described in West Virginia Code § 48

- 9

- 209 [were] abundantly present

, ” continue to persist, and their existence rebuts the presumptio n of equal shared parenting in this case. 3 Accordingly, the family court concluded that a change in the parenting plan would not be in the child’s best interest. It is from th e June 13, 2023, order that Mother now appeals.

For these matters, we use the following standard of review.

3 West Virginia Code § 48

- 9

- 209 (2022) provides a list of non

- exclusive factors to be weighed by the family court when entering an order approving or implementing a
temporar y or permanent parenting plan.3

“In reviewing . . . 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 discret ion standard. We review questions of law de novo .” Syl. Pt., [in part,] Carr v. Hancock

, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P. , 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022);

accord W. Va. Code § 51

- 2A

- 14(c) (2005) (specifying standards for appellate court review of family court order).

On appeal, Mother raises two assignments of error. First

, she asserts that the f amily court erred when it failed to modify the parenting plan. In support of her argument, Mother states that the parties’ parenting plan was outdated, only meant to be used temporarily, and that her circumstances have now changed. We disagree. West Virgin ia Code § 48

- 9

- 401(a) (2022) states

,

a court shall modify a parenting plan order if it finds, on the basis of facts

that were not known or have arisen since the entry of a prior order and were not anticipated in the prior order, that a substantial change has occurred in

the circumstances of the child or of one or both parents and a modification is necessary to serve the best interests of the child.

Here , the record reflects that Mother is presently unemployed and has not consistently held a full

- time jo b, that she stopped complying with the family court’s order for random drug testing, and that she testified during the family court hearing that she was “trying to find herself.” Additionally, Mother has relocated more than 250 miles away from E.J.M., maki ng any type of visitation difficult. As such, we find no error in the family

court’s determination that Mother failed to prove that a substantial change in circumstances

has occurred.

As her final assignment of error, Mother contends that the family cou rt failed to consider Father’s history of faults which contributed to their parenting situation. Again, w e disagree. Here, Mother was granted supervised visitation in September of 2019, when the family court adopted the parties’ joint parenting plan. Pursuant to th eir agreement , Mother was to continue to submit to random drug testing and was permitted to call E.J.M. once daily. Mother cancelled four of her supervised visits and only called E.J.M. four times in 2022. Mother’s second assignment of error focuses entirely on Father’s alleged behavior

but fails to address her own failure to follow the family court’s directives. Even if the family court failed to discuss Father’s alleged behavior, it is Mother’s burden to establish the required substantial ch ange of circumstances. Therefore

, we find that Mother has failed to establish error or abuse of discretion by the family court.

Accordingly, we affirm the family court’s June 13, 2023, order.4 Affirmed.

ISSUED: 

### February 27, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr Judge Charles O. Lorensen Judge Daniel W. Greear