STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

In re: H.N., B.N.-1, B.N.-2, and M.N. Jr February 21, 2017 

RORY L. PERRY II, CLERK 

No. 16-0864 (Roane County 16-JA-7, 16-JA-8, 16-JA-9, & 16-JA-10) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father M.N., by counsel Andrew Vodden, appeals the Circuit Court of Roane 

County’s August 15, 2016, order terminating his parental rights to six-year-old H.N., elevenyear-old B.N.-1, twelve-year-old B.N.-2, and fourteen-year-old M.N. Jr.1 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”), Anita Harold 

Ashley, filed a response on behalf of the children also in support of the circuit court’s order. On 

appeal, petitioner argues that the circuit court erred in finding that there was clear and convincing 

evidence to support the termination of his parental rights. 

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 February of 2016, the DHHR filed a petition for abuse and neglect against petitioner 

alleging that he failed to provide a necessary and safe shelter for his children by participating in 

the production of methamphetamine in the home. During the investigation, petitioner admitted to 

a Roane County Sheriff’s Officer that he cooked methamphetamine “earlier in the week.” 

Another adult in the home admitted to law enforcement that petitioner “cooked 

methamphetamine on more than one occasion at the residence with the most recent occasion 

1

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). Additionally, because two children share the same initials, 

we will refer to them as B.N.-1 and B.N.-2 throughout the memorandum decision. Finally, the 

Court notes that the proceedings below concerned an additional child that is not petitioner’s 

biological child. Petitioner raises no assignment of error in regard to this child on appeal. 

Accordingly, our holding in this memorandum decision does not concern the circuit court’s 

rulings regarding this additional child. 

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being February 9, 2016” and “cooked methamphetamine inside the homes days prior.” Following 

the investigation, petitioner was arrested for operating a clandestine drug laboratory. B.N.-1 told 

investigators that someone “brought [methamphetamine] to the house in pop bottles.” 

In May of 2016, the circuit court held an adjudicatory hearing during which it heard 

testimony from several witnesses, including petitioner and Roane County Deputy Sheriff Todd 

Cole. According to Deputy Cole, he located a “white powdery residue” in a bedroom at 

petitioner’s property and other materials commonly associated with the “shake and bake” method 

of methamphetamine production. Furthermore, another adult in the home admitted to Dep. Cole 

that methamphetamine was made in the residence while the children were present. Finally, Dep. 

Cole testified that petitioner admitted that he made and used methamphetamine. Petitioner 

testified that he was not involved in making methamphetamine and that the children were not 

living in the residence where deputies found methamphetamine materials. Furthermore, 

petitioner testified that Dep. Cole lied during his direct examination wherein he stated that 

petitioner admitted to making methamphetamine. 

The following month, the circuit court held a second adjudicatory hearing to take 

additional testimony.2 However, the witness failed to appear. The parties agreed to play 

petitioner’s recorded audio statement given to Dep. Cole during the initial investigation.3 After 

considering the testimony and the other evidence in the record, the circuit court found that 

petitioner’s testimony was not credible. By order entered on July 8, 2016, the circuit court 

adjudicated petitioner as an abusing parent finding that petitioner threatened the “health, life, and 

safety” of his children by manufacturing methamphetamine in the residence. 

In August of 2016, the circuit court held a dispositional hearing during which a DHHR 

worker testified that petitioner was currently incarcerated, that he had not participated in services 

during the underlying proceedings, and that he has not had any contact with his children.4 By 

order entered August 15, 2016, the circuit court found that petitioner was not capable of 

substantially correcting the conditions of abuse and neglect. As such, the circuit court terminated 

petitioner’s parental rights to his children. 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 

2

Petitioner was not present at the adjudicatory hearing, but he was represented by 

counsel. 

3

The statement was not transcribed as part of the adjudicatory hearing transcript. 

4

Petitioner was not present at the dispositional hearing, but he was represented by 

counsel. 

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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). We first note that on, appeal, 

petitioner failed to include a standard of review and failed to adequately cite to appropriate legal 

authority in support of his arguments on appeal. 

Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that 

[t]he 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 . 

. . [and] must contain appropriate and specific citations to the record on appeal[.] 

The Court may disregard errors that are not adequately supported by specific 

references to the record on appeal. 

(emphasis added). 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 two 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. 

Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the 

argument presented and do not ‘contain appropriate and specific citations to the record on appeal 

. . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here, petitioner’s 

brief is woefully inadequate as it fails to comply with West Virginia Rule of Appellate Procedure 

10(c)(7) and our December 10, 2012, administrative order, 

Despite petitioner’s failure to preserve this issue for appeal, the Court has reviewed the 

record in this matter and determined that the circuit court committed no error in regard to 

petitioner’s assignment of error. On appeal, petitioner argues that the circuit court erred in 

finding that he manufactured methamphetamine in his residence and that he consumed illegal 

drugs. While petitioner denied manufacturing or using methamphetamine during the May 12, 

2016, adjudicatory hearing, the circuit court heard testimony to the contrary during the June 8, 

2016, hearing in which petitioner’s recorded statement to Dep. Cole was admitted as evidence. 

After considering petitioner’s testimony and his recorded statement, the circuit court found that 

petitioner’s testimony “was not credible as it clearly conflicted with his own audio-recorded 

statement[.]” We have previously 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). Indeed, this Court has explained 

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that “a trial court’s credibility determinations are entitled to special deference.” Bartles v. Hinkle, 

196 W.Va. 381, 389, 472 S.E.2d 827, 835 (1996). Furthermore, Dep. Cole testified that another 

adult in the residence stated that petitioner manufactured methamphetamine in the residence and 

that petitioner admitted that he manufactured and used methamphetamine during the underlying 

investigation. Based on our review of this issue, we find no support for petitioner’s argument that 

the circuit court had insufficient evidence to support termination. For these reasons, we find no 

error. 

For the foregoing reasons, we find no error in the circuit court’s August 15, 2016, order, 

and we hereby affirm the same. 

Affirmed. 

ISSUED: February 21, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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