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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.D.-1, I.D., and C.D.-2

No. 23-94 (Pocahontas County CC-38-2022-JA-23, CC-38-2022-JA-24, and CC-38-2022-JA-25)

MEMORANDUM DECISION

Petitioner Grandfather R.B.

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appeals the Circuit Court of Pocahontas County’s January 23, 

2023, order terminating his custodial rights to C.D.-1, I.D., and C.D.-2,

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arguing that the circuit 

court improperly adjudicated him of neglecting the children. 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. App. P. 21.

In July 2022, the DHS filed a petition alleging that petitioner neglected the children by

failing to supply them with necessary supervision, medical care, and education. Petitioner is the 

children’s maternal grandfather. The petition detailed that the children had been in the care of

petitioner and his wife, E.B., since the children’s biological mother passed away in June 2022. The 

petition noted that petitioner had a substantiated Child Protective Services (“CPS”) history 

regarding his own children and that he is a convicted felon. The petition indicated that law 

enforcement responded to a referral alleging that petitioner’s adult children, who intermittently 

lived in petitioner’s home, were involved in a domestic violence incident. It was further alleged 

that those two individuals were using illegal drugs. Two days after the incident, a CPS employee 

visited the home and observed that I.D. suffered from poor dental health. The CPS employee 

noticed that a current respondent in another abuse and neglect proceeding was present at 

1Petitioner appears by counsel Kristopher Faerber. The West Virginia Department of 

Human Services appears by counsel Attorney General Patrick Morrisey and Assistant Attorney 

General Jason R. Trautwein. Counsel Michael Witt appears as the children’s guardian ad litem.

Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as 

the West Virginia Department of Health and Human Resources was terminated. It is now three 

separate agencies—the Department of Health Facilities, the Department of Health, and the 

Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect 

appeals, the agency is now the Department of Human Services (“DHS”).

2We use initials where necessary to protect the identities of those involved in this case. See 

W. Va. R. App. P. 40(e). Additionally, because two of the children share the same initials, we will 

refer to them as C.D.-1 and C.D.-2. 

FILED

March 6, 2024

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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petitioner’s home. The petition noted that a family court order entered in July 2022 did not grant 

anyone custody of the children, even though the children’s paternal aunt had filed for guardianship.

Instead, the family court removed the case to circuit court due to the pending abuse and neglect 

proceedings.

In September 2022, the court memorialized its preliminary hearing in an order. The court 

found that petitioner’s adult child, N.M., was living in petitioner’s home and taking care of the 

children when CPS visited in July. At the time, N.M. had an active CPS case, and her own children 

were in foster care. The court found probable cause that imminent danger existed at the time of the 

children’s removal because petitioner was unable to get the children medical care and schooling 

and he allowed N.M. to help care for the children. 

A Court Appointed Special Advocate (“CASA”) report filed in November 2022 described 

the children’s circumstances. The children were never enrolled in school and C.D.-1 should have 

already completed kindergarten. All three children had dental decay so severe that it required 

surgery, and I.D. would have to have the majority of her teeth removed. Additionally, an ear, nose,

and throat doctor found a bead lodged in I.D.’s ear and could not determine how long it had been

lodged there. Petitioner and his wife did not participate in multidisciplinary team meetings held in 

September and December of 2022. The CASA ultimately recommended that the children be 

adopted in the current placement. 

The court took evidence over the course of two adjudicatory hearings. The CPS employee

who visited petitioner’s home in July 2022 testified that at the visit she learned that N.M. was 

residing in petitioner’s home and helping take care of the children. A CPS supervisor testified that 

she received a call from a medical center inquiring if the children were in the DHS’s custody, as 

petitioner’s spouse was unable to give consent for the children to receive medical care. During his 

testimony, petitioner confirmed that his adult child, N.M., lived in his home and that his children 

and grandchildren lived in his home intermittently. Petitioner testified that he had no CPS history, 

which was later found to be untrue. He also testified that N.M. came to live with him after she was 

released from jail. Petitioner admitted that he had a prior felony conviction. When asked if he 

allowed inappropriate individuals to be in the presence of the children, he stated that “they [were] 

not inappropriate to me [because] they [were] family.” 

The CPS supervisor who signed the initial petition was the last individual to testify. She 

testified that DHS policy does not allow CPS to place children with relatives who are felons or

who have a substantiated CPS history. She stated that N.M. had an ongoing abuse and neglect 

proceeding due to alleged drug use and that petitioner and his wife, E.B., did have a substantiated 

CPS history. She opined that due to these circumstances, petitioner was not an appropriate 

placement for the children. At the end of the hearing, the court held that petitioner and his wife 

were the custodians3of the children at the time of the initial petition. Ultimately, the court found 

that the children’s health was threatened by petitioner’s failure to supply the children with 

3West Virginia Code § 49-1-204 provides: “‘Custodian’ means a person who has or shares 

actual physical possession or care and custody of a child, regardless of whether that person has 

been granted custody of the child by any contract or agreement.”
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necessary supervision, medical care, and education. Petitioner was adjudicated of neglecting the 

children.

Given that petitioner challenges only his adjudication, it is sufficient to note that the circuit 

court terminated his custodial rights following a dispositional hearing in January 2023.

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It is from 

the dispositional order that petitioner appeals.

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 argues solely that 

the circuit court improperly adjudicated him of neglecting the children. However, the only 

argument petitioner advances in support of this assignment of error is that the circuit court ignored 

his “meaningful testimony” and favored other evidence in reaching adjudication. Petitioner 

acknowledges that this Court will not ordinarily disturb the lower court’s determinations regarding 

the weight and credibility of evidence, but states that it is proper to do so here. However, we have 

held 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.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 

531, 538 (1997) (emphasis added). Moreover, “[a]n appellate court may not decide the credibility 

of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.” State 

v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995). The circuit court 

appropriately exercised its authority to assign weight and credibility to the evidence presented.

Therefore, we decline to disturb the circuit court’s ruling.

Instead, we note that the court was presented with ample evidence that petitioner neglected 

the children’s medical needs to a degree that surgery was required for all the children. Further, 

petitioner admitted to permitting individuals whose own children had been removed from their 

custody to supervise the children and explained that he did not believe this constituted neglectful 

conduct. This clearly satisfies the applicable burden of proof to establish that petitioner, at a 

minimum, neglected the children. See W. Va. Code § 49-1-201 (defining “neglected child,” in part, 

as one “[w]hose physical or mental health is harmed or threatened by a present refusal, failure or 

inability of the child’s . . . custodian to supply the child with necessary food, clothing, shelter, 

supervision, medical care, or education”); W. Va. Code § 49-4-601(i) (imposing a clear and 

convincing burden of proof at adjudication). 

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

January 23, 2023, order is hereby affirmed.

Affirmed.

ISSUED: March 6, 2024

4Petitioner’s wife’s custodial rights were also terminated. The children’s biological parents

are both deceased. The permanency plan for the children is adoption in the current placement.
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CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn