Bryan W. v. West Virginia Department of Health and Human Resources

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
BRYAN W., November 1, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-16 (Bd. of Review No. 21-BOR-2493) OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Bryan W. 1 appeals the December 15, 2022, amended order of the West
Virginia Department of Health and Human Resources’ Board of Review (“Board of
Review”). Respondent West Virginia Department of Health and Human Resources
(“Department”) filed its response. 2 Bryan W. filed a reply. The issue on appeal is whether
the Board of Review erred in upholding the Department’s administrative finding of
maltreatment against Bryan W., regarding children who were placed in his home by the
Department as a kinship/relative placement.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board of Review’s order is
appropriate under Rule 21 of the Rules of Appellate Procedure.

On July 17, 2020, the Department was assigned a referral to investigate allegations
of maltreatment by Bryan W. against his grandchildren, A.W., J.C., and A.C. 3 All three
children were in the legal and physical custody of the Department, who had temporarily

1
We use initials where necessary to protect the identities of those involved in this
case. See W. Va. R. App. P. 40(e).

Bryan W. is represented by Sarah L. Petitto-Meyers, Esq., and Ambria M. Britton,
2

Esq. The Department is represented by Chaelyn W. Casteel, Esq.
3
This same referral also alleged maltreatment by Bryan W.’s wife, Patricia W.,
which was upheld by the Board of Review. Patricia W. has filed her own appeal, ICA Case
No. 23-ICA-15, that this Court will address by separate decision.

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placed those children in Bryan W.’s home as a kinship/relative placement. As part of the
home study approval process, Bryan W. executed several documents, including a document
acknowledging that he agreed to adhere to the Department’s discipline policy. This
acknowledgment stated:

The kinship/relative provider will comply with the discipline policy.
Punishments of a physical nature, including hitting on the body in any
manner, or any punishment that subjects a child to verbal abuse, ridicule, or
intimidation is strictly prohibited. Children shall be disciplined with kindness
and understanding[.] The above issues have been addressed or discussed with
the kinship/relative caretaker(s). The caretaker(s) understand that this
placement is a temporary placement and that the child/children are in the
custody of the DHHR. The caretaker(s) agree to cooperate and comply with
the above[-]mentioned issues, which were discussed with them.

On July 17, 2020, two Department workers were accompanied by law enforcement
to Bryan W.’s home to remove the children, pending its internal investigation of the certain
allegations of maltreatment. 4 As part of the Department’s post-removal investigation,
Department workers interviewed A.W. and J.C. In these interviews, the children gave
detailed disclosures regarding Bryan W.’s use of corporal punishment on them, as well as
A.C. It was disclosed that this discipline would occur when the children broke a rule, or
when A.C. would have toileting accidents.

According to the Family Functioning Assessment (“FFA”) that was completed by
the Department to reflect the findings of its investigation, the Department substantiated
maltreatment by Bryan W. in the form of physical abuse, based upon his use of corporal
punishment on the children. The substantiation precluded Bryan W. from further
consideration as a kinship/relative or foster placement.

Bryan W. challenged the Department’s findings of maltreatment, and a hearing was
held before the Board of Review on March 29, 2022. At the hearing, the Board of Review
heard testimony from the investigating Department workers, who recounted the children’s
disclosure of physical abuse by Bryan W. Bryan W. also testified, disputing the accuracy
of the Department workers’ testimony, and refuting the allegations made against him.

On April 12, 2022, the Board of Review entered its initial final order, finding that
the Department properly substantiated physical maltreatment by Bryan W. based upon the
interviews of A.W. and J.C. It found the claims against Bryan W. were supported by the

4
The record does not state what the original allegations were in the referral, and the
Department’s finding of maltreatment, in addition to the Board of Review’s order, rest
solely on the post-removal interviews of A.W. and J.C., who disclosed Bryan W.’s use of
corporal punishment against them and A.C.
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weight of the evidence, corroborated by the FFA, and that his conduct violated the
Department’s discipline policy. 5

This decision was appealed to circuit court. 6 Before the circuit court, it was argued
that newly obtained bodycam footage from the law enforcement officer on scene during
the removal, contradicted the testimony of the Department workers and refuted the Board
of Review’s findings. 7 By order entered on September 23, 2022, the circuit court remanded
the matter to the Board of Review with directions to consider the bodycam footage and
enter an amended order in the matter.

In accordance with the circuit court’s directive on remand, the Board of Review
reviewed the bodycam footage, and on December 15, 2022, issued an amended order. In
its amended order, the Board of Review found that the bodycam footage was only relevant
to the allegations against Bryan W.’s wife and contained no information pertaining to the
maltreatment allegations against him. This amended order went on to find that Bryan W.’s
testimony that he did not physically abuse the children carried little weight considering the
statements of A.W. and J.C., who recounted the physical abuse in convincing detail. This
amended order is now on appeal to this Court.

This appeal is governed by the following standard of review:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate, or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;

5
This order addressed the maltreatment allegations against both Bryan W. his wife,
Patricia W. See n. 3 supra.
6
The circuit court retained jurisdiction over the Board of Review’s order because it
was entered prior to June 30, 2022. See W. Va. Code § 51-11-4(b)(4) (2022) (stating this
Court only has jurisdiction over final administrative decisions entered after June 30, 2022).
7
Before the circuit court, Bryan W. also argued that the Department workers failed
to interview him as part of its investigation. On remand, the ALJ found that allegations
could be substantiated without interviewing the alleged perpetrator(s) of abuse. Bryan W.
does not challenge that finding in this appeal.

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(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021); accord W. Va. Code § 16-1-22a (2023) (designating
West Virginia Code § 29A-5-4 as governing standard of review for Board of Review
appeals); W. Va. Code § 49-4-601b(b) (2020) (a person has right to appeal Board of
Review decision to court designated under West Virginia Code § 29A-5-1 to -5). “The
‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones
which presume the agency’s actions are valid as long as the decision is supported by
substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473
S.E.2d 483 (1996); see also, Syl. Pt. 1, in part, In Interest of Tiffany Marie S., 196 W. Va.
223, 470 S.E.2d 177 (1996) (on appeal, a court may not overturn a finding simply because
it would have decided case differently).

Further, an appellate court is required to give deference to an administrative decision
unless it is clearly wrong. See Syl. Pt. 1, in part, Muscatell v. Cline, 196 W. Va. 588, 590,
474 S.E.2d 518, 520 (1996) (“findings of fact by the administrative officer are accorded
deference unless the reviewing court believes the findings to be clearly wrong.”); Syl. Pt.
1, Francis O. Day Co., Inc. v. Dir. Of Env’t Prot., 191 W. Va. 134, 135, 443 S.E.2d 602,
603 (1994) (“[e]videntiary findings made at an administrative hearing should not be
reversed unless they are clearly wrong.”); In re Queen, 196 W. Va. at 444, 473 S.E.2d at
485, syl. pt. 1. (“[a]n adjudicative decision of [an administrative agency] should not be
overturned by an appellate court unless it was clearly erroneous, arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law. Review under this
standard is narrow and the reviewing court looks to the [administrative agency]’s action to
determine whether the record reveals that a substantial and rational basis exists for its
decision.”). With these principles in mind, we now turn to this appeal.

Bryan W.’s only assignment of error raised on appeal is that the bodycam footage
refutes the Department’s basis for imposing its finding of maltreatment. Notably, his brief
makes no argument regarding the physical abuse allegations, but rather, focuses solely on
the bodycam footage. It was not until Bryan W. filed his reply that he made any argument
directly addressing the allegations against him by arguing, that the Board of Review’s
interpretation of the evidence was clearly wrong and an abuse of discretion because Bryan
W. denied all the allegations against him, the children never testified, and his testimony
should be given the most weight.

We find no error in the Board of Review’s decision. Bryan W.’s sole assignment of
error is limited to the bodycam footage; however, upon this Court’s review of the same,
we agree with the Board of Review that this footage only pertains to the allegations against
Bryan W.’s wife and is irrelevant to the finding of maltreatment made against him. Case in

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point, we find that there is no evidence within that bodycam footage related to the
children’s corporal punishment disclosures. In fact, the record clearly shows that those
disclosures were made during the Department’s investigation following the children’s
removal on July 17, 2020. We are also unpersuaded by the arguments raised by Bryan W.
in his reply. Aside from the fact that these arguments should have been properly raised as
assignments of error, pursuant to Rule 10(c) of our Appellate Rules of Procedure, we find
that even if they had been raised as assignments of error, the arguments still fail as a matter
of law.

As previously noted, Bryan W. argues that the Board of Review was clearly wrong
and abused its discretion by upholding the Department’s finding of maltreatment because
he denied the allegations, the children were not called as witnesses, and his testimony was
more credible than the Department workers. First, we find that Bryan W. has failed to offer
any legal authority to support these arguments. Next, we find the theme of these arguments
rests on the evidentiary and credibility findings made by the Board of Review. On that
issue, our Supreme Court of Appeals has made clear,

[s]ince a reviewing court is obligated to give deference to factual findings
rendered by an administrative law judge, a circuit court is not permitted to
substitute its judgment for that of the hearing examiner with regard to factual
determinations. Credibility determinations made by an administrative law
judge are similarly entitled to deference.

Syl. Pt. 1, in part, Cahill v. Mercer Cnty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437
(2000). “We must uphold any of the [administrative law judge’s] factual findings that are
supported by substantial evidence, and we owe substantial deference to inferences drawn
from these facts. “Further, the ALJ’s credibility determinations are binding unless patently
without basis in the record.” Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 304,
465 S.E.2d 399, 406 (1995).

In this case, while Bryan W. and the Board of Review have differing opinions as to
the facts of the case and the credibility of witnesses, that alone is not sufficient for this
Court to invalidate the findings below. Credibility determinations are soundly vested with
the Board of Review, as trier of fact. Critically, the Board of Review was in the best
position to observe the testimony and demeanor of each witness and, therefore, was in the
best position to rule on credibility. Thus, we decline to disturb its determination that Bryan
W.’s testimony was not credible. We also fail to find any basis in the record to support a
finding that the Board of Review’s factual determinations regarding the allegations against
Bryan W. were patently without basis, and, thus, decline to assign error to the same.

Accordingly, we find that the Board of Review’s decision to uphold the
Department’s finding of maltreatment against Bryan W. is supported by substantial
evidence and must be afforded deference as required by law. Therefore, we find no error

5
and affirm the Board of Review’s December 15, 2022, amended order as it pertains to
Bryan W.

Affirmed.
ISSUED: November 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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