1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re E.B.

No. 22-0294 (Nicholas County 22-JA-08)

MEMORANDUM DECISION

Petitioner Father M.B.

1 appeals the Circuit Court of Nicholas County’s March 18, 2022, 

order adjudicating him as an abusing parent of E.B.

2 Upon our review, we determine that oral 

argument is unnecessary and that a memorandum decision affirming the circuit court’s order is 

appropriate. See W. Va. R.A.P. 21.

Prior to the initiation of the instant proceedings, petitioner and the mother were engaged in 

ongoing proceedings in family court to determine custody of and visitation with the child. The 

mother had primary custody of the child, and petitioner was granted visitation on Saturdays and 

daily phone calls. On the evening of January 5, 2022, petitioner placed a phone call to the child 

and allegedly overheard the mother’s boyfriend threaten to hit the child. Petitioner sought and 

obtained an order granting him temporary custody of the child. On the evening of January 6, 2022, 

petitioner and law enforcement officers arrived at the mother’s home and took custody of the child. 

The next day, January 7, 2022, the child was seen by a physician who observed bruising and 

redness on the child’s face and determined that the injuries had been intentionally caused. 

Subsequently, on January 14, 2022, the West Virginia Department of Health and Human 

Resources (“DHHR”) filed a petition against petitioner, alleging that the child received the injuries 

to her face while in petitioner’s care, that the injuries were the result of physical abuse, and that 

petitioner could not provide an explanation for the child’s injuries. The circuit court held a 

contested preliminary hearing later in January of 2022 and heard the testimony of a Child 

Protective Services (“CPS”) worker and petitioner. Ultimately, the circuit court found that 

imminent danger existed to the child and that there were no reasonable alternatives to the removal 

of the child from petitioner’s home.

1

Petitioner appears by counsel Paul S. Detch. The West Virginia Department of Health and 

Human Resources appears by counsel Patrick Morrisey and Brittany N. Ryers-Hindbaugh. Susan 

Hill appears as the child’s guardian ad litem.

2

We use initials where necessary to protect the identities of those involved in this case. See 

W. Va. R.A.P. 40(e).

FILED

October 26, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

The circuit court held an adjudicatory hearing over the course of three days in March of 

2022.3 The DHHR presented the testimony of the CPS worker, a pediatrician who observed the 

child’s bruising, two police officers, the mother, and the mother’s boyfriend’s mother. Petitioner 

and his wife also testified. The pediatrician testified that she observed linear bruising on both sides 

of the child’s face and other facial injuries and explained that the injuries were nonaccidental and 

caused by a hand. The pediatrician stated that she could not provide a time frame for when the 

bruising occurred. The two police officers testified that they accompanied petitioner for the 

custody exchange and neither observed facial bruising on the child. The mother and the mother’s 

boyfriend’s mother testified that that they also observed the child on the day of the custody 

exchange and saw no facial bruising. The CPS worker’s testimony established that the child was 

placed in petitioner’s care on the evening of January 6, 2022, and that when the child was seen by 

a doctor on the afternoon of January 7, 2022, the child had bruising on her face. The CPS worker 

further noted that the child had a telehealth appointment via Zoom with another doctor on the 

morning of January 7, 2022, and no bruising was mentioned or observed.

Petitioner testified that his wife observed facial bruising on the child on the evening of 

January 6, 2022, but that he did not check the child for bruising because he was “in disbelief.” 

Petitioner admitted that he called a local ambulance service to check on the child due to her high 

temperature on the morning of January 7, 2022, and that there were no major health issues. 

Petitioner’s wife testified that she observed bruising on the child’s face on the evening of January 

6, 2022, but stated it could not be seen during the custody exchange because it was covered by the 

child’s hair and a hat.

Ultimately, the circuit court adjudicated petitioner as an abusing parent. The circuit court 

found that petitioner’s contention that the child had facial bruising on the evening of January 6, 

2022, was refuted by the testimony of several other people. The circuit court further noted that 

petitioner had the child checked by an ambulance service on the morning of January 7, 2022, and 

no issues were reported, and he failed to mention any bruising during the child’s telehealth 

appointment. The circuit court considered the photographs taken by the pediatrician and noted that 

if the bruising had been present on January 6, 2022, it would have been open, obvious, and 

observable to the officers and others present for the custody exchange. The circuit court further 

found that petitioner’s testimony was incredible and noted that his failure to check the child’s 

bruising (which he alleged occurred prior to the custody exchange) because he was in disbelief 

was “ridiculous and unreasonable and erodes his credibility as a witness.” Indeed, at the hearing 

on the matter, petitioner was nervous, red, and sweating during difficult questioning and answered 

many questions with “I don’t remember.” As such, the circuit court found that the child sustained 

the facial injuries while she was in petitioner’s care and custody. Petitioner appeals the circuit 

court’s March 18, 2022, adjudicatory order. 4

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the 

circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re 

Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, petitioner raises several 

3

Petitioner did not attend the second day of the adjudicatory hearing.

4

The parents’ parental rights remain intact, and the proceedings are ongoing. 
3

assignments of error regarding his adjudication.5 Petitioner contests the circuit court’s findings 

and argues that the court ignored the testimony of the pediatrician, who stated that she could not 

provide a time frame for when the abuse occurred. Moreover, petitioner claims that the DHHR’s 

theory of the case (that he filed false pleadings to obtain custody of the child only to then inflict 

harm on the child) is “totally against any laws of reason or common sense.” Lastly, petitioner 

contends that the circuit court erred in failing to admit into evidence a photograph that corroborated 

his wife’s testimony and failed to consider a recorded and transcribed telephone call wherein he 

claims the mother’s boyfriend can be heard threatening to hit the child. 

The circuit court was presented with sufficient evidence to adjudicate petitioner as an 

abusing parent. We have held that “[a]t the conclusion of the adjudicatory hearing, the 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 . . . .” In re F.S., 233 W. Va. 538, 544, 759 

S.E.2d 769, 775 (2014). Further, we explained that “‘clear and convincing’ is the measure or 

degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the 

allegations sought to be established.” Id. at 546, 759 S.E.2d at 777 (citation omitted). Although

the pediatrician could not provide a time frame for when the abuse occurred, multiple witnesses 

testified that the child did not have facial bruising on January 6, 2022, prior to being placed in 

petitioner’s care. Moreover, the evidence established that petitioner was the only person to care 

for the child on January 7, 2022, and that, although the child was observed by an ambulance service 

and a doctor via telehealth, petitioner failed to mention any bruising and no bruising was noted by 

health professionals. However, by the afternoon appointment that day, the child had obvious 

bruising and redness on her face. The circuit court, having reviewed the photographs, concluded 

that if the bruising had been present on January 6, 2022, it would have been open, obvious, and 

observable. While petitioner argues that there was no scientific evidence presented, he fails to cite

to any legal authority establishing what scientific evidence, if any, must be presented for 

adjudication. Upon our review, we find no error. 

Lastly, petitioner argues that the circuit court erred in refusing to consider a photograph 

and a recording of a telephone call, both of which he alleges support his argument that the mother’s 

boyfriend caused the child’s bruising. We have previously held that 

rulings on the admissibility of evidence . . . are committed to the discretion of the 

trial court. Absent a few exceptions, this Court will review evidentiary and 

5

We note that petitioner failed to cite to the standard of review or to provide any authority 

whatsoever for three out of his four assignments of error; he further failed to provide relevant 

argument as to one assignment or error, instead reiterating the procedural history of the case. These 

failures are in direct contradiction to Rule 10(c)(7) of the Rules of Appellate Procedure, which 

requires that “[t]he brief must contain an argument exhibiting clearly the points of . . . law 

presented . . . and citing the authorities relied on.” Further, in an Administrative Order entered 

December 10, 2012, Re: Filings That Do Not Comply With the Rules of Appellate Procedure, the 

Court specifically cautioned that “[p]ursuant to Rule 10(j), failure to file a compliant brief ‘may 

result in the Supreme Court refusing to consider the case, denying argument to the derelict party, 

dismissing the case from the docket, or imposing such other sanctions as the Court may deem 

appropriate.’”
4

procedural rulings of the circuit court under an abuse of discretion standard.” Syl. 

Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

Syl. Pt. 3, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014). Moreover, Rule 10(c)(1) of the West 

Virginia Rules of Procedure for Child Abuse and Neglect Proceedings provides that

[n]ot less than five (5) days prior to any hearing wherein the respondent intends to 

introduce evidence, the respondent shall provide to the attorney for the petitioner, 

the attorney for the child, and all other persons entitled to notice and the right to be 

heard, the following information:

(1) Copies of books, papers, documents, photographs, tangible objects, buildings, 

or places which are within the possession, custody, or control of the respondent and 

which the respondent intends to introduce as evidence in chief at the trial.

Here, the circuit court refused to admit the photograph because petitioner failed to provide 

it to the guardian and the mother’s attorney prior to the adjudicatory hearing. Petitioner spends 

much time arguing that the circuit court erred in denying his wife the opportunity to testify at the 

preliminary hearing and disallowing him to introduce the photograph at that hearing, but he fails 

to address why he did not provide the photograph to “all other persons entitled to notice and the 

right to be heard” five days prior to the adjudicatory hearing as required by Rule 10(c)(1), and 

instead provided the photograph only to the DHHR. Further, because petitioner entirely fails to 

cite the record to establish that he attempted to admit a recording of the alleged telephone call and 

also fails to address the basis for the circuit court’s decision not to admit the recording, we are 

unable to evaluate whether the circuit court did, in fact, err. In any event, petitioner states that he 

did not attempt to offer the recording for the truth of the matter asserted, but rather, to establish 

that the child was upset, which he and the mother both testified to. As such, we find no error in 

this regard. In sum, we find that petitioner fails to demonstrate that the circuit court abused its 

discretion in adjudicating him as an abusing parent. 

For the foregoing reasons, we find no error in the decision of the circuit court, and its March 

18, 2022, order is hereby affirmed.

Affirmed.

ISSUED: October 26, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn