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. 

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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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