STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: M.N. FILED 

November 23, 2015 

No. 15-0539 (Clay County 14-JA-29) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother C.N., by counsel Jerome R. Novobilski, appeals the Circuit Court of 

Clay County’s March 9, 2015, order terminating her parental rights to fifteen-year-old M.N. 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 and a supplemental appendix. 

The guardian ad litem (“guardian”), Michael W. Asbury Jr., filed a response also in support of 

the circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1) failing to 

take testimony from the child as to her wishes regarding the disposition of petitioner’s parental 

rights; and (2) ruling that the child’s best interests “extend” to a child beyond the age of 

maturity.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. 

In May of 2014, the DHHR filed an abuse and neglect petition against petitioner and her 

husband alleging that they failed to provide the child with a suitable home; abused controlled 

substances; and possessed marijuana, hydrocodone powder, and drug paraphernalia in the home. 

The DHHR further alleged that petitioner and her husband committed domestic violence against 

the child by pushing her against a wall and pulling her shirt and hair. 

In June of 2014, the circuit court held an adjudicatory hearing. Based on the evidence 

presented of petitioner’s substance abuse and domestic violence, the circuit court found that 

petitioner abused and neglected the child as alleged in the petition. Later that month, the circuit 

court held its first dispositional hearing. At that hearing, the circuit court granted petitioner’s 

motion for a post-adjudicatory improvement period. 

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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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In October of 2014, the circuit court held a hearing to review petitioner’s improvement 

period. The DHHR presented evidence that, while on her improvement period, petitioner tested 

positive for controlled substances on multiple drug screens and failed to submit samples for other 

drug screens on several occasions. In addition to those concerns, further evidence revealed that 

petitioner failed to attend several visits with the child and failed to attend other parentalimprovement services, such as parenting and adult life skills classes. At the conclusion of the 

hearing, the circuit court ordered petitioner to complete a six-month, inpatient substance abuse 

treatment program as an added condition to her improvement period. 

In December of 2014, the circuit court held its final review hearing on petitioner’s 

improvement period. The circuit court heard evidence that petitioner failed to complete an 

inpatient substance abuse treatment program and that she continued to miss scheduled 

appointments for parenting and adult life skills classes, psychotherapy sessions, and general 

therapy sessions. Due to her absences, petitioner’s general therapy sessions were discontinued by 

the date of the hearing. Petitioner also continued to test positive for controlled substances. Based 

on the foregoing, the circuit court terminated petitioner’s improvement period and scheduled the 

matter for disposition. 

In February of 2015, the circuit court held its final dispositional hearing. The circuit court 

heard from petitioner, the DHHR worker, and the guardian that the child wished for petitioner’s 

parental rights to not be terminated. Petitioner moved the circuit court to take testimony directly 

from the child as to her wishes, and the circuit court denied that motion. The guardian then 

argued that termination of petitioner’s parental rights was necessary for the child’s best interests, 

despite her wishes against termination. Given the evidence of petitioner’s repeated failures to 

improve the conditions that led to the abuse and neglect and the child’s best interests, the circuit 

court terminated her parental rights.2 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 

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The circuit court granted petitioner post-termination visitation with the child at the 

child’s discretion in the amount of two hours every two weeks. The circuit court noted that said 

post-termination visitation would continue under the conditions that petitioner remain drug and 

alcohol free and continue to exercise that visitation. 

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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 failure to take testimony 

from the child directly as to her wishes regarding petitioner’s parental rights.3 West Virginia 

Code § 49-6-5(a)(6)(c) provides, in relevant part, that “the court shall give consideration to the 

wishes of a child fourteen years of age or older or otherwise of an age of discretion as 

determined by the court regarding the permanent termination of parental rights.” In this case, it is 

undisputed that the child was fourteen years of age at the time of the final dispositional hearing. 

While the circuit court did not take testimony from the child directly, the record is clear that the 

circuit court heard from petitioner, the DHHR worker, and the guardian as to the child’s wishes 

that petitioner’s parental rights not be terminated. Based upon our review of the record on 

appeal, we find no error in the circuit court’s compliance with West Virginia Code § 49-6­

5(a)(6)(c). While the circuit court must consider the child’s wishes, which it clearly did, the 

statutory mandate does not bind the circuit court to any particular outcome based on the child’s 

wishes. 

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Although the Court will address petitioner’s claims on the merits, we caution petitioner’s 

counsel that we could have dismissed this appeal for failure to comply with our case law and the 

Rules of Appellate Procedure. Petitioner fails to cite any legal authority or portions of the record 

on appeal in support of her assertions. This Court has previously stated that “issues . . . 

mentioned only in passing but [ ] not supported with pertinent authority are not considered on 

appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (citations omitted). 

Further, Rule 10(c)(7) of the Rules of Appellate Procedure expressly requires that petitioner’s 

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, under 

headings that correspond with the assignments of error. The argument must 

contain appropriate and specific citations to the record on appeal, including 

citations that pinpoint when and how the issues in the assignments of error were 

presented to the lower tribunal. The Court may disregard errors that are not 

adequately supported by specific references to the record on appeal. 

We have often explained that it is petitioner’s burden to show that error affirmatively occurred in 

the judgment of which he complains. Syl. Pt. 2, W. Va. Dep’t. of Health & Hum. Res. Emps. Fed. 

Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004). Additionally, in an 

Administrative Order entered December 10, 2012, Re: Filings That Do Not Comply With the 

Rules of Appellate Procedure, then-Chief Justice Menis E. Ketchum specifically noted in 

paragraph 2 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. 

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Petitioner’s second assignment of error is that the child’s best interests do not “extend” to 

children who have reached the age of maturity. After a thorough review of the parties’ 

arguments, the record on appeal, and all pertinent legal authority, we find no support for such a 

claim. As noted above, the child at issue was fourteen years of age at the time of disposition in 

this matter. Pursuant to West Virginia Code § 49-1-2,“‘child’” means any person under eighteen 

years of age.” With respect to the children in abuse and neglect proceedings, we have long 

explained that “‘[a]lthough parents have substantial rights that must be protected, the primary 

goal in cases involving abuse and neglect, as in all family law matters, must be the health and 

welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 

2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013); see also Michael K.T. v. Tina L.T., 

182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (stating that “[t]he best interests of the child is 

the polar star by which decisions must be made which affect children.” (internal citations 

omitted)). 

Here, the circuit court correctly considered the child’s wishes, petitioner’s rights, and the 

child’s best interests in arriving at its decision to terminate petitioner’s parental rights to the 

child. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are required to terminate 

parental rights “[u]pon a finding that there is no reasonable likelihood that the conditions of 

neglect or abuse can be substantially corrected in the near future and, when necessary for the 

welfare of the child.” West Virginia Code § 49-6-5(b)(3) provides that “no reasonable likelihood 

that conditions of neglect or abuse can be substantially corrected” exists when a respondent 

parent fails to respond or follow through with a reasonable family case plan or other 

rehabilitative efforts. The circuit court heard substantial evidence of petitioner’s continued 

failures to complete the goals of her improvement period, including her failed drug screens, her 

failure to complete inpatient treatment, and her failure to attend parenting classes and therapy 

sessions. As such, the evidence clearly supported the circuit court’s findings that that there was 

no reasonable likelihood that petitioner could substantially correct the conditions of neglect or 

abuse in the near future and that termination was in the child’s best interests. Petitioner failed to 

follow through with rehabilitative efforts, and the child has a continuing need for permanency 

and stability. Based on the substantial evidence presented in support of the circuit court’s 

findings, we find no error in the circuit court’s order terminating petitioner’s parental rights. 

For the foregoing reasons, the circuit court’s March 9, 2015, order is hereby affirmed. 

Affirmed. 

ISSUED: November 23, 2015 

CONCURRED IN BY: 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

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DISSENTING: 

Chief Justice Margaret L. Workman 

Justice Menis E. Ketchum 

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